REDDIE & REDDIE
[2013] FMCAfam 280
•28 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REDDIE & REDDIE | [2013] FMCAfam 280 |
| FAMILY LAW – Children – Parental capacity – conflict between parents – young children – practical impact where the parents live some distance apart in same regional area. |
| Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA |
| Goode & Goode (2006) FamCA 1346 |
| Applicant: | MR REDDIE |
| Respondent: | MS REDDIE |
| File Number: | ADC 1942 of 2011 |
| Judgment of: | Kelly FM |
| Hearing dates: | 8, 9 December 2011, 12 January, 1, 2 November and 20, 21 December 2012 |
| Date of Last Submission: | 21 December 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 28 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Cocks |
| Solicitors for the Applicant: | Westley Di Giorgio |
| Counsel for the Respondent: | Ms A Horvat |
| Solicitors for the Respondent: | Ryans Lawyers |
ORDERS
The parties share equally in parental responsibility for the children X born on (omitted) 2004 and Y born on (omitted) 2006.
The children live with the mother SAVE as otherwise specified in these orders.
The children live with the father as follows:
(a)during school terms:
(i)each alternate weekend from the conclusion of school Friday until the commencement of school Monday (or Tuesday in the event Monday is a public holiday) and to recommence on the first weekend of each school term;
(ii)each intervening week from the conclusion of school Thursday until the commencement of school Friday (or until 5.00pm in the event Friday is a public holiday or a pupil free day);
(b)for one half of each school holidays at times to be agreed between the parties and in default of agreement:
(i)for the first half of each short school holiday period commencing at the conclusion of school on the last day of term and concluding at 5.30pm on the Saturday one week following;
(ii)in the Christmas 2013 school holidays and each alternate year thereafter from the conclusion of school on the last day of the school term until 5.30pm on the fourth Saturday of the holiday period;
(iii)in the Christmas 2014 school holidays and each alternate year thereafter from 5.30pm on the fourth Saturday until 5.30pm on the last Saturday of the school holiday period;
The children spend time with each parent on special occasions as follows:
(a)in the event Mother’s Day falls on the father’s weekend, the children’s time in the father’s care will conclude at 5.30pm on the Saturday prior to Mother’s Day;
(b)in the event Father’s Day falls on the mother’s weekend, the children will live with the father from 5.30pm on the Saturday prior to Father’s Day until the commencement of school on the Monday;
(c)with the father from 3.00pm Easter Thursday until 5.30pm Easter Monday in 2013 and each alternate year thereafter with such time to be included within the calculation of the children’s half school holiday time in the father’s care in the event Easter falls within the April school holidays in any given year;
(d)with the mother from 3.00pm Easter Thursday until 5.30pm Easter Monday in 2014 and each alternate year thereafter with such time to be included within the calculation of the children’s half school holiday time in the mother’s care in the event Easter falls within the April school holidays in any given year.
(e)at such other times, including special occasions, as may be agreed between the parties.
Handovers on school days take place with the father to collect the children from, or return them to the (omitted) School, or such other school as the children may attend.
All other handovers take place at the (omitted) Police Station or such other public venue as may be agreed between the parties and confirmed in writing.
Each parent shall facilitate telephone communication between the children and the other parent at all reasonable times and, in particular, on the children’s birthdays, the parents’ birthdays and Christmas Day.
Each parent shall notify the other as soon as possible in the event either child suffers a significant injury or is diagnosed with a significant illness.
Each parent is at liberty to communicate directly with the children’s treating medical practitioners, specialists or any other health professionals regarding the children’s health and welfare.
Each party shall notify the other parent of the names and contact details of the family general practitioner and any other health professional providing treatment to either child and keep them informed and up to date with such information.
Each parent is authorised to:
(a)receive copies of all school reports, newsletters, letters to parents and any other correspondence provided from the children’s school; and
(b)attend any school events to which parents are usually invited including parent/teacher interviews, open days, sports days, concerts, presentations and any other school related events.
Each parent shall notify the other at least 21 days prior to travelling interstate with the children.
In the event the interstate trip exceeds seven (7) days, the travelling parent shall provide the other parent with an itinerary and contact telephone number and shall ensure that the children telephone the other parent on at least one occasion each week.
Both parents shall:
(a)speak respectfully to each other both in and out of the children’s presence;
(b)speak in positive terms about the other parent to or in the presence of the children;
(c)exchange information relevant to the children’s welfare within a Communication Book to be exchanged with the children’s belongings at each handover;
(d)endeavour to receive all communication from each other (whether in the Communication Book or otherwise) in a framework of trust and good intent.
The parties are restrained from:
(a)insulting, criticising or denigrating the other party or members of their family in the presence of the children;
(b)allowing any other person to insult, criticise or denigrate the other parent or members of their family in the presence of the children.
The mother is restrained and an injunction is granted restraining her from:
(a)using any illegal drugs for a period of 24 hours prior to and during all periods of time the children spend in her care; and
(b)allowing Mr S to live with her or stay overnight in her home while the children are in her care.
The father is restrained from consuming alcohol to excess while the children are in his care (defined as no more than four standard alcoholic drinks in any 24 hour period).
IT IS NOTED that publication of this judgment under the pseudonym Reddie & Reddie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1942 of 2011
| MR REDDIE |
Applicant
And
| MS REDDIE |
Respondent
REASONS FOR JUDGMENT
X is just eight years old. Her brother Y is six years old. They lived on the family farm outside (omitted) until their parents separated in August 2010 and since then the children have primarily lived with their mother, Mrs Reddie. Their father, Mr Reddie, continues to live on the family farm.
Initially the children lived with their mother in the township of (omitted). However, in May 2011, they moved to live in (omitted), a small town some 40 kilometres away. Ms Reddie did not tell the father that she intended to move with the children to (omitted) and it was this move that prompted the father’s application to this Court.
The father believes the children should live with him, where they can return to the (omitted) Primary School. The mother believes the children are settled in her care at (omitted), are settled in the local primary school there and should remain in her care.
Background
The parties began living together in March 2004 when the mother moved back to (omitted). They were married on (omitted) 2004. The mother has two older children, M aged 16 years and B, aged 13 years. M lived with the family during the parties’ relationship. B lives in her father’s primary care and spends regular time with the mother.
X was born on (omitted) 2004 and Y was born on (omitted) 2006. The parties lived on the father’s family farm and the father continues to work the farm with his extended family.
The father claims that the mother was a heavy drug user prior to their relationship, an allegation which has been a major theme throughout these proceedings. The mother acknowledges having used recreational drugs prior to their relationship, but denies the father’s allegations that she was “a drug addict”.
Both parties acknowledge that their relationship became increasingly unhappy over the years. The father eventually came to believe that the mother was again using drugs, particularly as he discovered the mother had apparently made various large unexplained cash withdrawals in the 12 months or so leading up to their separation.
The father eventually confronted the mother regarding his concerns about the family finances and it seems this was the catalyst that led to the mother and M moving out in August 2010. X and Y remained living on the family farm with their father for two weeks or so while the mother arranged independent accommodation in (omitted), after which the children moved to live with their mother, by agreement.
The mother commenced a new relationship with Mr S in November 2010. Mr S lives in (omitted).
The father says that the parenting arrangements were negotiated reasonably amicably in the early months following separation, but the parties’ co-parenting communication was very limited, even at this early stage. For example, the parties had agreed the children would stay with their father across January 2011, but there were no clear arrangements about when the children would return to the mother’s care. Neither party appears to have made any effective attempt to communicate with the other parent across that period. The children therefore remained with the father and started the school term from his care, without either parent having discussed these arrangements.
The mother assumed the children were returning to her care and collected X from school in the first week of the new school term in February 2011. She then demanded the father also return Y to her care. The father eventually returned Y to his mother in what was clearly a tense and distressing handover for all concerned, particularly Y and X.
The children then remained in the mother’s care and spent infrequent time in their father’s care on weekends across February to April 2011. The parties’ co-parenting communication appears to have been virtually nonexistent across this time.
In April 2011 the parties again agreed that the children would stay with their father for the duration of the school holidays and across this same time the mother moved to live in (omitted). Ms Reddie concedes she did not inform the father of her decision to move, as she knew he would not agree to the children moving away from (omitted).
Mr Reddie only became aware that the children had moved away from (omitted) when he received a call from the (omitted) Primary School enquiring about X’s whereabouts, as she did not attend the first week of the second school term.
This was the final straw, from the father’s perspective. He already held increasing concerns regarding the mother’s lifestyle. He did not believe the mother was able to provide a stable home for the children and accordingly on 26 May 2011 Mr Reddie filed his initiating application seeking primary care of X and Y.
The matter was first listed on 17 July 2011 for an interim hearing. The Court declined to remove the children from the mother’s primary care or to direct the mother and children return to live in (omitted) on an interim basis. Orders were made for the children to live with each of their parents on a specified schedule and orders were made addressing the father’s allegations of drug use by the mother.
The parties attended a Section 11F Child Dispute Conference in July 2011 but were unable to reach any agreement. Accordingly on 22 August 2011 the previous parenting Orders were continued until further Order and the matter was listed for trial to 8 and 9 December 2011.
The trial
The trial was listed for a two day hearing but did not conclude within the time allocated. The parties agreed arrangements over the Christmas 2011 school holidays and the trial was adjourned part heard to conclude on 12 January 2012.
On 13 December 2011 the police conducted a raid on the mother’s premises at (omitted). Ms Reddie and her partner Mr S were arrested for possession of illegal substances and other offences. The father became aware of this incident and retained the children at the end of their allocated school holiday time in his care.
Accordingly when the trial resumed on 12 January 2012, the Court heard evidence from the mother regarding the events that had occurred at her home on 13 December 2011. Ms Reddie gave evidence that she was not the owner of any of the illegal items or illegal substances found at her premises, nor was she aware that they were present in her house. She said she had subsequently ended her relationship with Mr S. Out of an abundance of caution the Court issued a Certificate pursuant to s.128 of the Evidence Act 1995 in relation to the mother’s evidence.
The Court concluded there was insufficient basis to vary the existing interim parenting arrangements for the children. The Court did however restrain the mother from allowing any contact between Mr S and the children. Accordingly X and Y returned to their mother’s care pending the conclusion of the trial.
As the substantive trial was still not finished, both parties sought an adjournment until such time as the criminal charges in relation to the mother and Mr S were finalised. Clearly the outcome of any criminal proceedings would be relevant to the parenting issues before this Court and accordingly the adjournment was granted.
Mr S subsequently confirmed on oath that the illegal items and substances belonged to him and confirmed that the mother had no involvement. A further s.128 Certificate was issued regarding Mr S’s evidence in relation to the events on 13 December 2011.
All of the criminal charges against the mother were eventually withdrawn or dismissed for want of prosecution between March and May 2012. Mr S pleaded guilty to various charges in May 2012 and was convicted on 5 counts of Cultivating more than the Prescribed Number of Cannabis Plants, Failure to store Ammunition separately from Firearms, Carrying/Possession of a Silencer, Possession of a Dangerous Article and Carrying an Offensive Weapon.
The trial in this Court was then re-listed to resume part heard on 1 and 2 November 2012 and finally concluded on 20 and 21 December 2012.
The evidence
The father relied upon the following documents:
a)his trial Affidavit filed 28 November 2011;
b)his Affidavit filed 16 December 2011;
c)his further trial Affidavit filed 22 October 2012;
d)Affidavit of his brother, Mr Reddie, filed 5 December 2011;
e)Affidavit of the paternal grandmother, Mrs Reddie, filed 5 December 2011;
f)Affidavit of his sister, Ms B, filed 22 October 2012.
The mother relied upon the following documents:
a)her trial Affidavit filed 2 December 2011;
b)her further affidavit filed 12 January 2012;
c)her Addendum Trial Affidavit filed 26 October 2012;
d)Affidavits of Mr S filed 2 December 2011, 4 April 2012 (but sworn 31 January 2012) and 25 October 2012.
The mother also subpoenaed two witnesses, Dr K, a forensic scientist and Ms M, the practice manager at the (omitted) Medical Centre. A Regulation 7 Family Consultant, Ms U prepared two s.62G family reports in this matter. Both parties gave evidence and were available for cross examination, as were the parties’ supporting witnesses and Ms U.
Credibility of witnesses
The mother’s demeanour was very defensive during her time in the witness box. When pressed, she acknowledged that she had previously sworn to matters that were either incorrect, or untrue, particularly her original affidavit evidence regarding her drug use in 2011 and the precise nature of her domestic relationship with Mr S. Leaving aside those two topics, I consider the mother endeavoured to give her evidence honestly during the process of cross examination but her answers were unduly cautious or non responsive at times, which undermined the reliability of her evidence.
On 12 January 2012 the mother was cross examined at length about the police raid that occurred on 13 December 2011. I am satisfied that the mother played no role in the offences detected on that date. I note my findings were supported by the subsequent decision by SA Police to withdraw the charges laid against her.
I am satisfied the father gave his evidence honestly and to the best of his recollection. However, it is clear from the tenor of his Affidavit and his demeanour in the witness box that he holds a very negative view of the mother. He believes that the mother was a drug addict prior to their relationship. He believes she resumed using illegal drugs later in their relationship and subsequently. This belief colours his view of the mother and appears to be the only prism through which he is able to view the mother’s behaviour. This limits the weight to be placed upon the father’s evidence about the mother’s current lifestyle.
The father’s supporting witnesses all gave their evidence honestly and to the best of their recollection.
Mr S was a very unimpressive witness. In addition to his Affidavit filed 2 December 2011 where he acknowledged lying about the extent of his drug use in his earlier affidavit, I find that he lied under oath on numerous other occasions, both in Affidavits and during cross examination. I generally place no weight upon his evidence, whether that evidence may be seen to be supportive of the mother’s case, or contradictory of it.
Dr K gave his evidence in a calm and professional manner and his evidence was very helpful to the Court. I also accept Ms M’s evidence.
Ms U prepared two family reports in this matter. In the course of preparing her second report Ms U became aware of settlement negotiations that had taken place between the parties. Ultimately the relevant paragraphs of Ms U’s second report were struck out.
The father argued that Ms U’s evidence and opinions were unavoidably tainted and sought to exclude her as an expert witness, but I dismissed that application. I was confident that Ms U would be able to identify the extent to which that information affected her final opinion and recommendations and to reconsider or amend her conclusions, if she felt it was necessary to do so.
Ms U dealt with this very professionally during cross examination. She acknowledged that the information about prior negotiations had a significant impact on her recommendations, and even estimated it to a percentage number, to the extent of 20%. However, she did not consider that the impact of this information was so significant that she would change or reconsider her recommendations.
I accept Ms U’s evidence. I am also confident of my own judicial capacity to disregard the portion of Ms U’s report that has been struck out. Those paragraphs do not affect my decisions about X and Y’s living arrangements and best interests.
The father raised other criticisms of Ms U’s approach but I do not consider those criticisms greatly undermine Ms U’s evidence. On balance, Ms U’s evidence was of considerable assistance to the Court, particularly as she was able to provide some insight into the children’s views and the interaction between the children and each of their parents.
The parties’ proposals
Both parties agree that they should share equally in parental responsibility for the children and I agree that this order is in the best interests of X and Y. While their parents struggle to communicate effectively and there is very little trust or mutual respect between them at present, it is clear that both Mr Reddie and Ms Reddie love their children and are committed to their welfare. I am cautiously optimistic that their co-parenting dynamic may improve once the Court process is concluded.
The father proposes that the children live with him and spend time with the mother on alternate weekends, overnight on the intervening week and for one half of school holidays. He proposes the children return to (omitted) Primary School and sets out a range of other orders in relation to the parties’ general responsibilities and communication, most of which are uncontroversial.
Mr Reddie’s concerns crystallised into a formal application for primary care of X and Y when the mother moved to (omitted) without any notice to him. The father saw this as a further indication of her inability to provide a stable and secure home for the children.
The father’s concerns can be summarised as follows:
a)The mother’s past drug use, which he believes is an ongoing issue;
b)The mother’s dishonesty and inability to provide an appropriate parental role model;
c)The mother’s unstable living arrangements, including her relationship with Mr S;
d)The mother’s lack of commitment to her parental responsibilities;
The mother’s failure to support the children’s ongoing right to maintain a meaningful relationship with their father.
The father argues that he is able to provide a better quality of parenting for the children. He can provide the children with a stable home base where they will also enjoy the ongoing support of his extended family. He does not use illegal drugs and the children will not be exposed to any aspect of the “drug scene” or “drug culture”. If the children live with him on the farm near (omitted), they will return to (omitted) Primary School where X commenced her schooling in 2010.
The mother proposes that the children continue to live with her in (omitted) and that they spend time with the father as presently occurs. She also seeks a range of orders in relation to the parties’ parenting and co‑parenting behaviour, similar to the father’s proposals.
Ms Reddie argues that she has always been the children’s primary caregiver and continues to perform that role properly and appropriately, despite some past lapses. By contrast she says the father never sought a significant parenting role during the marriage and that his work on the farm is very time consuming. The mother also argues that the father has an ongoing problem with alcohol abuse and anger management. She argues that all of these factors combine to leave her in the position of the preferred primary caregiver.
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper, subject to the limitations set out in that section. When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in children’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode[1] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346
Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
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 the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are thirteen additional considerations in s.60CC(3) which must be taken into account. The Court must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4), (4A)).
Section 61DA requires the Court to presume that it is in the children’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply or is rebutted. The parties agree that an order for equal shared responsibility is appropriate and this order triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the children’s best interests to spend equal time, or substantial and significant time with each parent, provided any such arrangement is also reasonably practicable.
Ms Cocks, Counsel appearing for the father, quite rightly submitted that the Court must assess each party’s proposal and weigh up the benefits (or otherwise) that they each put forward. While the father was only prompted to bring this application because of his concerns regarding the mother’s lifestyle, it is not sufficient to simply consider whether or not his concerns are justified and base my decision accordingly. The Court must assess the totality of each party’s proposal in accordance with the legislation and the criteria set out in s.60CC.
I will address all of the criteria in due course, but consider it is appropriate to commence my considerations by addressing the issues surrounding the mother’s past and present drug use and her relationship with Mr S, as these issues took up a significant amount of the court’s attention during the trial.
The mother’s drug use
The mother acknowledged that she used illegal drugs on a recreational basis as a young adult, including marijuana and methamphetamines. She denied that she was still using drugs at the time she and the father met or at any time subsequently during their relationship.
The father said he observed a range of behaviours that led him to conclude that the mother was using illegal drugs in the months prior to separation, such as weight loss, mood swings, sleeping on the couch and late night secretive telephone calls. I conclude that those behaviours could just as easily be ascribed to a party who is in an unhappy relationship and perhaps contemplating leaving that relationship. I am not satisfied that the mother had resumed using illegal drugs during the relationship.
The mother initially denied using illegal substances at all in recent times. On that basis, she did not oppose orders made by the Court on 17 June 2011 restraining her from using or consuming illegal substances while the children were in her care. Nor did she oppose further orders made on that same date requiring her to undergo hair follicle drug screen testing upon request from the father’s solicitors.
There were some delays in arranging a hair follicle test, but it eventually took place in October 2011. The toxicology report dated 14 November 2011 indicated that the hair segment taken from the mother was found to contain approximately 40pg Methylamphetamine per mg.[2] No other drugs were detected.
[2] Annexure CIR2 to the father’s affidavit filed 28 November 2011
The report also notes that hair grows at an average rate of approximately one centimetre per month. Four centimetres of hair were analysed, which would cover the four months prior to sampling. It was only after this test result was received that the mother acknowledged having consumed amphetamines at a party in approximately July 2011. The father was highly sceptical about the mother’s late admission that she had used drugs only once in the relevant period.
Dr K gave evidence to the effect that, while the mother’s hair follicle test came back positive, the test results were at a very low level, far lower than he is use to seeing when testing known addicts. He said that the mother’s test results were at a level of 40 picograms, which did not indicate someone who was using methamphetamines frequently over the four month period, even taking into account the variability factors inherent in any testing resume. Dr K’s evidence provides the most reliable assessment in relation to the mother’s drug use, at least for the period July to October 2011.
In addition to the hair follicle test results there were also various urinalysis drug screen tests undertaken by the mother. While all the tests returned negative results for any illegal substances, the test undertaken on 12 August 2011 provided results that were inconsistent with normal human urine. The father believes that the mother must have provided a false sample by substituting her own urine with synthetic urine. The mother denies substituting her urine sample.
Ms M gave evidence about the testing process on this date. She confirmed that she was present in the small bathroom at the medical clinic when the mother gave her urine sample. She said that she provided the mother with the sample cup but turned away while the mother gave her actual specimen. Ms M estimated she was approximately one metre away from the mother and she could hear the sound of the mother urinating.
It was clear from Ms M’s evidence that she found the whole process of supervising very uncomfortable. I accept that she did not actually see the mother urinating into a specimen cup but I am not able to conclude from this that the mother provided a false sample on this occasion.
It would have been a very risky process indeed for the mother to endeavour to provide a false sample. Ms Reddie knew that a staff member would be in the room with her and could not be sure that they would not be supervising more diligently.
The test results certainly raise a concern that the mother was deliberately attempting to defeat the drug screen process. I understand why the father believes there is no other reasonable explanation for the results. However I am unable to consider making a formal finding on this point without hearing further evidence regarding the full chain of custody protocols, the risk of accidental sample misplacement at the testing facility and so on.
I do not consider it necessary to make a formal finding in any event as any such finding would go more to the mother’s credibility rather than any assessment of the mother’s drug use.
In the period since the separation I find that the mother has used illegal substances such as amphetamines on at least one occasion and possibly more. However this use was not at a level that indicates she has a drug abuse problem, based on the evidence from Dr K. Taking into account all the evidence I find the evidence is insufficient to base a finding that the mother was using illegal substances during the parties’ relationship.
The use and consumption of illegal substances is a criminal offence and it is not behaviour that should be tolerated by the Court. However, my finding that Ms Reddie has used illegal drugs on a limited basis is simply one factor amongst many that I must take into account in assessing the future best interests of X and Y. There is no evidence to suggest that the mother has used illegal substances in such a way or at such a level that it has compromised her parenting or placed the children at risk in her care.
A finding that a parent has been an occasional consumer of illegal drugs does not automatically disqualify that parent from a primary parenting role in the future. The Court must assess all of the considerations in s.60CC and then allocate such weight to those findings as is appropriate and consistent with the children’s best interest.
The mother’s relationship with Mr S
The mother commenced her relationship with Mr S in October 2010, while she was living in (omitted) and Mr S was living in (omitted). No doubt Ms Reddie’s decision to move to (omitted) was in part because of her relationship with Mr S. I also accept she found life in (omitted) difficult, as she could not easily avoid contact with the father and his extended family. I accept that the mother considered the move to (omitted) as “a fresh start”.
The mother and Mr S were cross-examined about whether Mr S was living with the mother after she moved in to her home at (omitted) in (omitted). Mr S’s original evidence was that he was staying at her home three or four nights per week but was not living there. He subsequently changed his evidence upon being confronted with his Bail Agreement in which he was bailed to reside at the mother’s address.
The mother’s Affidavit material was silent about whether Mr S was living with her full time or simply staying over three or four nights each week. I do not consider this distinction is a significant factor. The mother’s decision to commence an intimate relationship with Mr S is another matter. It clearly demonstrates a very poor exercise of judgment on her part, given everything we now know about Mr S.
The mother knew that Mr S used marijuana regularly around her premises. I accept her evidence that he did not smoke marijuana in the house or in the presence of the children, but she must take responsibility for failing to disclose information about his marijuana use to the Court and failing to ensure that no such unlawful activity was taking place within her home, where her children also reside.
I accept that it was unlikely X or Y would have found the bullets or other illegal items found within the house, but it was nonetheless a risk. Even more concerning is the risk that the children were exposed to the experience of their mother and her partner being arrested. Ms Reddie was very fortunate that the police allowed her to make arrangements for the children, prior to implementing the Search Warrant.
While the charges were ultimately withdrawn against the mother, nonetheless her relationship with Mr S placed her in a situation where she was charged with serious criminal offences. In a small town such as (omitted) these events could well have become a source of great embarrassment or teasing for the children.
As already discussed, Mr S did not present well in the witness box. He expressed little remorse about having given false evidence, and seemed to consider an explanation that “he felt embarrassed” about his behaviour was sufficient. I reject that explanation. I consider the more likely explanation was, as suggested to him during the hearing, that he was in fact trying to hide his illegal activities. Mr S conceded that may have been the case.
What is most concerning about the mother’s actions across this time is that she was aware that Mr S was regularly consuming marijuana on her premises. Notwithstanding this, she chose to maintain an intimate domestic relationship with him (whether full time or three or four nights per week makes no difference to my mind), knowing that the father was particularly – and understandably – concerned about the use of illegal drugs.
Even if Mr S behaved precisely as she says and went out to the shed or the far back garden to smoke marijuana, the children would inevitably notice such behaviour and as they grew older, they would have wondered what he was doing.
Mr S does not have a significant criminal record but his past offending clearly demonstrates a general disregard for the law and legal obligations. This attitude was also on display in the witness box. I expect neither Mrs Reddie nor Mr Reddie would want their children to adopt such an attitude as they grow up.
Mr S provides a very poor role model for X and Y and is not an appropriate person to live in their household as a parental figure. However, I am not satisfied that his offending is at such a level that the children should have absolutely no further social contact with him.
The mother informs the Court that she is no longer in a relationship with Mr S but she clearly has an ongoing friendship with the S family, in particular Mr S’s sister and his mother. It may well be that the mother would hope to maintain a friendship with Mr S as well. I do not consider that occasional social interaction between the children and Mr S will be detrimental to their moral development.
Section 60CC(2) criteria – primary considerations
(a) benefit to the children having a meaningful relationship with both parents
Both parties agree that X and Y have a meaningful relationship with the other parent. They acknowledge that, despite their criticisms of the other parent, both parents have a positive role to play in the children’s lives. I agree with that view and any orders should support the children’s meaningful relationship with each parent.
(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother alleges that the father was violent to her during their relationship. She says that his behaviour indicates an underlying aggression and lack of emotional control that may impact upon his parenting of the children. I will discuss the wife’s evidence in this regard further when addressing the additional considerations pursuant to s.60CC(3), but I do not consider the children are at risk of being exposed to or affected by family violence in the care of either parent.
I am equally confident that the children are not at risk of neglect in either parent’s care, as discussed further in these Reasons. Equally there are no allegations of abuse that are relevant to the children. [3]
Section 60CC(3) – additional consideration
[3] As defined in s.4(1) of the Act
(a) the children’s views
The children’s views have been obtained through two interviews with Ms U. The first interviews took place on 25 October 2011 and are set out in Ms U’s report dated 31 October 2011. The second interviews took place on 18 September 2012 and are set out in her report dated 24 September 2012.
In October 2011 X was clear that she liked living with her mother and in (omitted). She went on to say that “its fun visiting her father because he plays with them” and that “she also likes to stay with her paternal grandparents sometimes”.[4]
[4] Family Report dated 31 October 2011, para.31
In the second report, X was reported as saying that “she had no difficulties in living in two homes and enjoyed visiting her father on weekends … ”.[5] X was also reported as saying “she likes the (omitted) school because she has some good friends there” and that when she is with her mother she is able to play with her friends.[6] Ms U went on to note that X was sensitive to the feelings of both of her parents and Ms U concluded that she did not want to say anything that might hurt or upset either parent.
[5] Family Report dated 24 September 2012, para.17
[6] Family Report dated 24 September 2012, para.18
Ms U noted that Y avoided talking about his family too much. She noted that “His biggest wish was for mum, dad and the family to live on the farm.” Y went on to say that he likes going to see his father and that he “gets on best with his dad”.[7]
[7] Family Report dated 31 October 2011, paras.35 and 36
Ms U described Y as a talkative friendly boy who likes seeing his father on weekends and enjoys kicking the footy with his dad and playing with him. Y went on to say that “… he likes going to his dad’s every weekend because he loves his dad. He then stated that he did not love his mum because she gets angry with him when he ‘does things like touching things’ ”.[8]
[8] Family Report dated 24 September 2012, para.21
I do not consider Y’s comments in the second report indicate any real concerns regarding his relationship with his mother. Rather, it reflects the reality that his mother, as primary care-giver, has a greater disciplinary role in his life. I note also that the school has reported that Y’s behaviour is challenging at times, which no doubt occurs at home as well.
The children’s wishes do not greatly influence my decision regarding their parenting arrangements but I note that X has clearly adjusted well to life in (omitted) and feels settled there.
(b)the nature of the children’s relationship with their parents and any other relevant people including grandparents or other relatives
Ms U observed the children’s interaction with each parent on two separate occasions and noted that X and Y were comfortable and at ease with both of their parents. The children clearly enjoy a warm and positive relationship with both their mother and their father.
I am confident the children enjoy a good relationship with their extended paternal family. Their paternal grandparents and other family members live and work in or around the family farm and (omitted), so the children have regular contact with them. X told Ms U that she likes to stay with her paternal grandparents sometimes.[9]
[9] Family Report dated 31 October 2011, para.31
I am confident that the children also enjoy a comfortable relationship with their extended family on their mother’s side as well. Ms U noted that the children responded well to their older brother M.[10] Ms U also noted that in the course of the second assessment, X allocated positive feelings to her half sister B.[11] This indicates that X has a strong sense that her older sister B is a part of her family, even though the children only see each other during school holidays.
[10] Family Report dated 31 October 2011, para.43
[11] Family Report dated 24 September 2012, para.19
I am confident both parents will support the children’s ongoing relationship with their extended family and will ensure that X and Y retain a strong sense of their own place within the larger family dynamics.
(c)the willingness and ability of each parent to facilitate and courage the children’s relationship with the other parent
The father argues that the 40 kilometre distance between (omitted) and (omitted) makes it harder for him to maintain a day to day involvement in the children’s lives. While that is obviously true, I reject his interpretation that the mother’s move to (omitted) was an attempt to undermine the children’s relationship with their father.
The mother may have been somewhat indifferent to the impact that moving to (omitted) would have upon the children’s time with their father. But this must be seen in the context of the parenting arrangements that were in place in early 2011. The father acknowledges that the children were in the mother’s care for most of the period between 20 February 2011 until the end of the first term on 24 April 2011. This lends some weight to the mother’s evidence that she did not see her move to (omitted) would be a problem, as the father was not spending regular time with the children in any event.
Both parents blame the other for this situation – the father says the mother would not respond to his telephone calls requesting time with the children; the mother says that she tried to make arrangements for the children to see their father, but he would generally say he was too busy working. Clearly, both parents must take some responsibility for allowing two months to pass when the children did not spend regular time with their father.
The evidence overall indicates that the mother has properly facilitated the children’s relationship with their father. She allowed the children to spend the whole of January 2011 and all of the April 2011 school holidays with their father. She has complied with all subsequent Court orders for the children to spend time with their father.
I am equally confident the father would comply with orders for the children to spend time with their mother, were X and Y to live in his full time care. However, I am concerned that the father’s hostility towards the mother may make it more difficult for him to genuinely facilitate and encourage the children’s relationship with their mother.
Both parties have exposed the children to the hostility they feel towards the other parent. However, it is particularly concerning that Y is reported as saying that “his father ‘hates his mother’ and said he knew this because his father had told him and that is why he [ie Y] does not love her”.[12]
[12] Ms U’s 2nd report dated 24 September 2012 at para.22
Despite telling Ms U that he does not love his mother, Y’s interaction with his mother was described as “easy and comfortable” by Ms U.[13] One can only speculate about the impact this level of emotional dissonance – ie between what Y says about his mother and how he interacts with her – must have upon his overall emotional welfare.
[13] Ibid at para.25
The father denied ever making any such comment to Y, but Mr Reddie’s hostility towards the mother was very obvious during his time in the witness box. Whether the father told Y that he hates his mother or simply conveyed this message through other comments or behaviour, it has clearly undermined Y’s relationship with his mother.
The father was also highly critical of the children’s older brother M, describing him as “a lying, cheating troublemaker”. It would be equally confusing for X and Y to hear angry or derogatory comments about their older brother, whom they also love.
(d) the likely effect of any changes in the children’s circumstances
Ms U noted that:
“Both parents made it evident that Ms Reddie was the main carer of the children during their early developmental years and the roles within the family were divided. Mr Reddie saw himself as the worker/provider with masculine pursuits after work, while Ms Reddie pursued the domestic chores.”[14]
Clearly moving from the primary care of their mother to the primary care of their father would be a significant emotional disruption for the children.
[14] Ms U’s 1st report dated 1 November 2011 at para.49
X and Y obviously have a strong and loving relationship with their father and I am confident that the father would support the children through any such emotional upheaval. I am also confident that the children would eventually settle into life in the primary care of their father, if such a move was determined to be in the children’s best interests.
During cross examination Ms U conceded that she did not ask X to comment on her experience at (omitted) Primary School, as opposed to (omitted) Primary School where she had commenced her schooling. She conceded that the children had not expressed a preference for (omitted) over (omitted).
Ms C noted it was not her usual practice to ask children to express a preference, whether in relation to life with their mother or father, or life in one town over another. Rather, she tended to rely on information obtained through more indirect questions. She noted the children were settled where they are in (omitted) and repeated her observation that the children were generally cautious not to express a negative view about either parent or about either location.
X and Y have been living in (omitted) for over 18 months. Y has commenced school with his older sister at (omitted) Primary School. Moving the children from their mother’s care in (omitted) to their father’s care in (omitted) will bring the further disruption of a change of school, although that impact may be minimised for X, as she has previously attended (omitted) Primary School.
(e) practical difficult difficulty and expense
While the distance between (omitted) and (omitted) limits the father’s capacity to participate in the children’s after school activities, I note that many separated families in rural or regional Australia have to travel equally long distances, whether to attend school, participate in extracurricular activities, or spend time with a parent, as here. Within the context of rural South Australia, 40 kilometres is not an impossible distance.
The parties presently share the travel involved in the children spending time with their father. The father collects the children from school on Friday afternoons and the mother collects the children from (omitted) on Sunday evenings. Neither party has indicated there is any real difficulty in maintaining that arrangement, no matter which parent has the primary care of the children.
No doubt as the children get older and join local sporting teams and the like, both parents will be equally committed to driving the children to their training and matches as well. It is not unusual for sporting activities to take place across a large regional district and the travel involved is simply part of country life. I do not consider the distance between (omitted) and (omitted) is so great as to create any real practical difficulty or expense for each parent ensuring the children spend time with each of them.
(f) parental capacity to provide for the emotional and intellectual needs of the children;
the attitude of each party to the children and to the responsibilities of parenthood;
the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent
It is useful to address these considerations together, as they are inter-related. The father argues that the mother has failed significantly in meeting her responsibilities as a parent. He says that she has failed to demonstrate an appropriate attitude towards the children or towards her present role as the children’s primary care giver.
The mother is equally critical of the father’s attitude towards his parenting responsibilities. She alleges he drinks to excess and that he has “a short fuse”. She says the father was violent to her and to M during their relationship and she believes he would continue to react aggressively if he feels provoked.
I have already discussed the father’s allegations in relation to the mother’s drug use and do not intend repeating those findings again. I do not consider the mother’s past drug use is significant in my assessment of her parenting capacity. I will now address each parent’s other concerns in turn.
The mother’s alleged dishonesty and poor role modelling
A great deal of evidence was heard in relation to the father’s allegations that the mother dishonestly removed funds from his (omitted) bank account in the months prior to separation. Ms Reddie conceded that at times she signed the father’s signature on withdrawal slips but says that this occurred with the father’s full knowledge. The father denies ever authorising or allowing the mother to sign such withdrawal slips.
Ms Reddie gave evidence that she managed the family’s finances. While certain farm payments were deposited into accounts in the father’s sole name, she routinely moved monies between accounts, or withdrew money for family living expenses and did so throughout the relationship, whether from the husband’s accounts, or other joint accounts.
Clearly the mother should not have signed cheques or withdrawal slips in relation to any account in the father’s sole name. By doing so she was committing fraud, in a strict legal sense. However, I do not consider that the “strict legal sense” is the appropriate test to apply to the mother’s actions.
Having heard evidence from both parties, I am not satisfied that there was anything in the mother’s actions or in her management of the family finances that was improper or dishonest. The father knew that the mother managed the family finances. He knew that money routinely moved between accounts, as required. While at times he signed cheques and/or left blank cheques signed for the mother to complete, I consider it more likely than not that he also knew the mother occasionally signed cheques or withdrawals slips on his behalf, or that Mr Reddie was otherwise disinterested in the actual mechanics of their financial arrangements.
It may be that the mother withdrew more money than the father was aware of in the months leading up to separation (although I am not making any finding in that regard). It may be that the mother spent family funds in ways that the father did not know of or would not have approved of. However, none of the evidence leads me to conclude that the mother was withdrawing family funds to buy drugs or that she had developed a drug habit at that time.
At the end of the day, having heard all of the evidence from the parties, I conclude that the financial transactions that occurred prior to separation are irrelevant to my considerations regarding the parenting arrangements for X and Y.
The father argued that the children were exposed to a high level of risk in the mother’s care by being exposed to Mr S’s illegal activities in relation to drug use, growing marijuana and the unsecured firearms. Such behaviour is illegal and clearly highly inappropriate. It is not a situation that one would want to see any children exposed to. Having said that, I accept the evidence from the mother and Mr S that he made an effort to keep his drug use away from the children. I also accept Mr S’s evidence that he was growing his marijuana well away from the house.
The mother’s aggression and hostility
The father alleges that the mother was aggressive towards him and towards the children, both prior to the separation and afterwards. He says the mother’s hostility has continued ever since and there is little civil conversation between them. The father believes the mother’s behaviour prior to separation was associated with her use of illegal drugs, but I reject that argument.
I am satisfied that any deterioration in the mother’s attitude towards the father (whether prior to, or after separation) arose either from the breakdown of their relationship and the stress surrounding their separation, or from subsequent parenting disputes.
The father says that the mother continues to behave aggressively towards him at handovers. I am satisfied that the mother may have been angry or terse at times during handovers and that this would have been obvious to the children. However, I have no great confidence that the father was behaving any better, particularly given the depth of his anger following her move to (omitted). It seems neither party has managed their communication with the other parent particularly well since the separation.
The mother’s unstable living arrangements
The mother has moved numerous times since the parties separated. The children first lived with her in (omitted) until she moved to live at (omitted) in May 2011. The mother then moved from those premises to Mrs S’s home and then from Mrs S’s home into her present rental premises.
Obviously children benefit from having a settled and stable home base. The father remains living on the family farm and has been able to provide that stability in a way that the mother has not. However, it must be remembered that the parties have not yet negotiated any property settlement. The mother has been in the rental market which often brings with it some level of insecurity. She is getting by with the financial support provided by government benefits and child support payments.
While it would have been preferable for X and Y to live in the one address with their mother, I do not consider that the mother’s housing difficulties are at a level that demonstrate inadequate parenting.
The mother’s poor parental decision making capacity and lack of commitment to parental responsibilities
The father argues that the mother is more focussed on her own personal desires rather than the children’s needs. He points to her move to (omitted) and her relationship with Mr S as one such example (with the subsequent exposure to police raids and the like). I agree that the mother’s move to (omitted) was more about her relationship with Mr S and her wish to get away from the husband and his family in (omitted), than any apparent benefit to X or Y.
The father also argues that the mother has not demonstrated any commitment towards the children’s educational needs with respect to homework, school support for Y and so on. The mother conceded that she has not always filled out the children’s homework diaries, but said this should not be seen as evidence that she does not ensure the children complete their homework, but simply that she failed to complete their diaries on occasions.
This issue was raised with the mother during the hearing on 12 January 2012 and was raised again with her in December 2012. It is concerning that both the semester one and semester two school reports refer to Y not having his homework diary every day. As the teacher points out, this failure has made it difficult for Y to establish a settled morning routine, in line with his new classmates.
It is no excuse for the mother to say Y forgot the diary. Ms Reddie eventually conceded that it was her responsibility to make sure that the diary is not only completed by her but then placed back in Y’s school bag so that he can participate in the morning routine at school.
Given Y was already struggling with his transition to school, it was the mother’s responsibility to make every effort to assist him in this regard.
Ms U spoke with the Primary Co-ordinator at (omitted) School, Ms R, in the process of completing her second report. Ms R noted that the school had no concerns regarding X but noted that Y presented with more challenging behaviour and was struggling academically. It is concerning that Ms R also commented that the school had not been able to put extra support in place for Y until recently, as the mother did not attend school interviews.[15]
[15] Ms U’s 2nd report dated 24 September 2012 at paras.27-28
The mother gave evidence that she has attended an interview in relation to Y and does not recall earlier letters she ignored or did not respond to. However, Ms Reddie conceded in cross examination that it was possible she may have missed some correspondence from the school. The mother went on to confirm that Y is now receiving extra assistance which apparently commenced at the conclusion of the first semester.
The father’s aggression
The mother alleges that the father has a short temper. She says the father would become easily provoked over minor issues and would react angrily, yelling abuse, slamming doors and punching objects. The father denied the mother’s allegations of physical violence during the relationship but conceded that on one occasion during an argument with M he punched a hole in the bedroom door.
The father agreed that the mother had to step in between him and M in the course of another argument. He further conceded that he hit M on the shoulder when M was approximately eight years old, as a disciplinary response for certain misbehaviour.
There was clearly a fair degree of tension between the father and M. The father described M as “uncontrollable” and he conceded that during the marriage he may have said to M that “you’re the reason everything is going wrong in this family”. He said that if he did make such a comment (and he could not be sure), then it would have been made in the heat of the moment.
The father continues to hold a very negative and hostile attitude towards M, describing him as a “lying, deceitful trouble maker at home and at school”. The father acknowledged that he struggles to say a good word about M at any time.
It may be that M was a particularly troublesome member of the family. It may be that his behaviour was very difficult to manage but it is equally clear that the father was unable to develop an appropriate method of either engaging with M or intervening with his behaviour when necessary.
Having considered the evidence of both parties, I am satisfied that the father reacted aggressively at times in a way that would have been frightening and intimidating for the mother, for M and certainly for X or Y, had they witnessed the father behaving in this way.
This behaviour raises real concerns with respect to the father’s reactivity and his capacity to manage conflict, particularly if he feels provoked. I accept there is no evidence to suggest that he ever behaved aggressively towards X and Y, but the children have not yet reached the more challenging adolescent years.
Clearly the father struggled to manage his role as a stepfather to a pre-teen and then teenage child, who may himself have been struggling to establish his own role within the new family dynamic. Hopefully the father has reflected upon his behaviour and will be better able to manage any challenging behaviour that X or Y may demonstrate as they grow older.
The father’s alcohol consumption
The mother believes the father drank to excess during their relationship and believes he continues to do so. She says that this behaviour affects his ability to care for the children. Her concerns were heightened recently when the father had clearly been drinking prior to attending at handover.
The father agreed that he had ‘had a few drinks’ on the day in question. He was sufficiently concerned that he asked a friend to drive him and the children to the handover, rather than run the risk that he might be over the legal limit. However, he says that this did not undermine his ability to care for the children.
Given the father was well aware of the mother’s concerns, it is surprising that he put himself in this position prior to a handover. If he had indeed consumed enough alcohol to place him over the legal limit, this may suggest he had indeed consumed alcohol to excess while the children were in his care, in breach of the existing injunction. However, the mother’s evidence on this topic is limited to one or two isolated incidents in the last 12-18 months. I do not consider these incidents are sufficient to undermine my assessment of the father’s parenting capacity.
Parental communication
Both parties have failed to demonstrate any real commitment to appropriate co-parenting communication. The difficulties that arose in the first week of the school year in February 2011 are just one early example of this. If either parent had bothered to communicate with the other and establish a clear arrangement for X and Y to be returned to the mother’s care, then the unpleasant scenes that arose around Y’s return to her care, with allegations of violence from M to the father, and vice versa, could all have been avoided.
There has been little improvement in the parents’ communication over the intervening two years. Each parent criticises the other for failing to provide relevant information in relation to the children’s welfare, but neither parent seems to acknowledge their own responsibility in this regard. Each parent accuses the other of behaving rudely or abusively at handovers.
The mother has made little effort towards improving the co-parenting dynamic between her and the father. The parties’ unwillingness to improve the level of communication between them is particularly concerning, given that they are both seeking an order for equal shared parental responsibility.
It was very clear from the father’s demeanour in the witness box that he still holds a great deal of anger and resentment towards his former wife. He believes she is lying about her relationship with Mr S. He believes that she continues to use illegal drugs. He believes that she does not look after the children properly. He believes she is a liar and struggles to accept anything she may tell him about any aspect of her life or the children’s care.
The father feels vindicated in his belief, based on occasional information provided by the children. For example, Y told the father that he had been given a birthday present from Mr S. X apparently told her aunt that Mr S is living in the shed at the back of his mother’s property. Neither the father nor Ms B seem to have considered that X, at age eight, and Y at age seven, may not be reliable reporters of the adult lives around them.
Ms B’s affidavit sets out her conversation with X, where X tells her that “(omitted) [Mr S] is living in the shed at their house”. This may be an accurate description and it may be that the mother and Mr S are flouting the Court injunction. Equally, it may be this description is X’s attempt to make sense of a situation where she knows that Mr S has equipment stored in the shed at his mother’s house and where she knows that he is there visiting his mother from time to time.
I have commented that Mr S was generally an unimpressive witness, in particular his evidence regarding his past drug use and the mother’s knowledge of his drug use. However I consider that his evidence in relation to his current living arrangements was much more matter-of-fact. I accept his evidence on this specific point.
I have no doubt that Mr S has visited his mother at her home over the last few months, while X and Y have been living there. However I am not satisfied that this led to any breach of the injunction, as his visits could easily have occurred when the children were at school, or with their father.
Both parents need to understand that their inability to communicate effectively places a huge burden on their two children. X and Y should not have to worry whether Mum or Dad is going to ‘have a go’ at the other parent during handover, or whether Mum has let Dad know about the parent teacher night interviews, or whether their sports gear has been dropped off in time for this week’s practice.
The more energy the children have to direct towards these issues, the less energy X and Y have available to direct towards their schooling and their social relationships. In other words, the less energy they will have to devote to simply being a child. The less effort that the parents make to manage their parenting responsibilities effectively, the more burdensome the children’s experience becomes.
Both parties will need to make significant efforts in this regard to ensure that their children’s welfare does not slip between the fracture lines within their own interpersonal dynamic. Both parents should investigate the availability of parenting courses in their region and participate in such course, if at all possible, to help them build more co‑operative parenting practices.
(g) maturity, sex, lifestyle and background of the children and their parents and any other characteristic that are relevant
Y has just commenced school and it is clear that he is struggling. I note that the mother failed to attend an appointment with the school in this regard, however, it now seems that there are appropriate learning and behavioural supports in place for Y.
Y is also struggling with toilet training and enuresis. Again, neither parent seems to have initiated any discussion with the other parent designed to support Y through this developmental hurdle.
The evidence seems to suggest that Y’s soiling problems are less obvious at the mother’s home than at school or at the father’s home. I do not see this is a major point of differentiation between the parties’ parenting capacity. However it remains a concern because it indicates that perhaps Y is experiencing a significant level of emotional distress as he moves between his parents’ care. What is even more concerning is that his parents have failed to talk about the issue or work together and support Y in this regard.
(j) family violence
I have discussed these issues elsewhere in these reasons and I do not consider any further discussion is necessary.
(l) preferable to make orders least likely to lead to further proceedings
Whether this hearing and these orders bring an end to the Court proceedings is up to the parties. While Mr Reddie and Ms Reddie have struggled to put aside their past differences and establish an effective co-parenting alliance for X and Y, I remain convinced that they are both devoted to the welfare of their children.
It is an unfortunate reality that family law litigation prompts the parties to focus on the criticisms and concerns they each hold about the other parent, rather than encouraging parties to look beyond a ‘knee jerk’ reaction to their immediate concern and to talk with the other parent, or seek some explanation about their concerns.
I am hopeful that once these proceedings are finalised, both parents will be able to move forward and provide a co-operative parenting experience that will work to the benefit of their two children.
(m) any other factor
There are no other factors that affect my decisions.
Conclusion
The Court’s responsibility is to consider the evidence placed before it and assess the parenting outcome that would best reflect the children’s best interests.
There is no presumption in favour of either party within the Family Law Act. The fact that the children have been living in the mother’s primary care since separation does not advantage or disadvantage either parent in the Court’s assessment of the relevant considerations pursuant to s.60CC, save for s.60CC(3)(d) when assessing the likely effect of any changes in the children’s circumstances. The Court must assess each parent’s evidence in light of all of those considerations and in light of the children’s overall best interests.
Inevitably however, where a case is finely balanced, the impact of a significant change in the children’s care arrangements may be the determining factor that sways the Court one way or another as between the competing parenting proposals.
The father argues that this matter is not finely balanced. He argues that he has stability, commitment, parental capacity and family support in his favour whereas the mother has demonstrated the opposite. Her living arrangements are chaotic, her lifestyle has brought the children into potential contact with drug use and criminality and she fails the most basic standard of day to day parenting.
There is no doubt that the mother has made some foolish decisions over the past two years since the separation. However, I conclude that the father’s concerns about the mother are overstated. I do not consider the children are at risk of being exposed to ongoing drug use in their mother’s care. Her relationship with Mr S exposed the children to his criminal behaviour, but I am satisfied that the mother was unaware that there were firearms on the premises, or that Mr S was growing marijuana. When she became aware of Mr S’s behaviour, she quite properly ended the relationship.
The father argues that the mother has not ended her relationship with Mr S. It may be that the mother has an ongoing friendship with Mr S but that is very different to Mr S living in the children’s home as a quasi-parental figure.
The father has the benefit of stable accommodation as he lives on the farm where he works. The mother is presently subject to the vagaries of the rental market and struggled with her financial responsibilities early in the separation. But to describe the mother’s accommodation as “chaotic” is overstating the situation.
The father described the mother as “disengaged” from the children’s education and particularly Y’s needs. The mother acknowledged that she may have missed a meeting with the school and could only account for this by querying whether she overlooked a letter or notice from the school in that regard. Even if that is the case, Y is now engaged in additional support which suggests that the mother has since been able to remedy the situation in an appropriate and child focussed manner.
Ms U’s evidence is significant. As the independent expert, she is the only neutral voice in the courtroom. I reject any suggestion that Ms U was biased in favour of the mother. On the contrary, I believe Ms U has considered both parties’ perspectives fully. At the end of the day, she placed greater weight upon the children’s established relationship with their primary caregiver, that is, their relationship with their mother. Therefore she also placed significant weight upon the impact of separating the children from their primary caregiver and concluded that this disruption was not in the children’s best interests, based on the information presented to her in the assessment process.
There was no suggestion that the children’s relationship with their father has been compromised or undermined within the existing parenting arrangements. It is clear from both of Ms U’s reports that the children love their father dearly and continue to enjoy a meaningful relationship with him.
As I am making an order for equal shared parental responsibility, the Court is obliged to consider whether the children should be spending equal time or substantial and significant time with each parent. Both the mother and the father consider that the distance between (omitted) and (omitted) is too great to make an order for equal time reasonably practicable. I agree that it is unrealistic to expect X and Y to travel 40 kilometres to and from school each day in alternate weeks (ie whether form their father’s home to (omitted) Primary School, or their mother’s home to (omitted) Primary School).
In determining which parent should assume the role of primary caregiver, I conclude that the evidence favours retaining the children’s present care arrangements. I conclude that a change in primary caregiver would require the children to go through a significant emotional adjustment. This would be particularly concerning for Y, who is already struggling with behavioural issues at school. I have no doubt that Mr Reddie would provide appropriate emotional support for the children were they to move into his primary care, but I remain unconvinced that such change is in the children’s best interests.
I am also troubled by the father’s ongoing hostility towards the mother. Y has picked up on this hostility, as discussed by Ms U. I am concerned that it would be extremely detrimental to the children’s emotional welfare to live in a home where there is such a high level of hostility towards their other parent. This is not to say that the mother has not failed in this regard as well but, on balance, the mother presented as better able to contain her hostility.
I conclude that the children should remain living in their mother’s primary care where they will enjoy the continuation of their primary attachment with her.
Clearly the children should continue to spend substantial and significant time in their father’s care as well. The existing orders see the children spending time with their father overnight on alternate Friday evenings as well as alternate weekends and half of school holidays. I am inclined to vary the existing arrangements in such a way as to ensure that the children have meaningful weekend time with both parents as well as a sense of their parents’ ongoing involvement in their school week.
In my view it is not unreasonable or impracticable for the children to make the trip from their father’s farm near (omitted) to their school at (omitted) once per week in the morning and once per week in the afternoon. This would ensure both parents have a meaningful involvement in their children’s school routines and will also allow both parents to participate in the children’s weekend activities.
I intend putting in place orders for the children to spend time in their father’s care overnight on alternate Thursdays rather than the current Friday, in addition to their alternate weekend time. I note the mother indicated she was prepared to continue the existing arrangements. If the parties ultimately consider that arrangement is more appropriate they are of course at liberty to reinstate that regime as opposed to the time now ordered by me.
Although I do not consider the mother is likely to resume using illegal drugs, I am satisfied the evidence is sufficient to justify an ongoing injunctive order in that regard. I will also continue the injunctive order in relation to the father’s alcohol use, and will more closely define that order.
Obviously both parents should refrain from criticising or denigrating the other parent. Indeed, I consider it is appropriate to cast the parties’ obligations in a positive sense – that is, that they speak positively and respectfully about the other parent in the presence of the children and ensure that all family members do so as well.
The parties are in agreement in relation to sharing school holidays and also consent to orders for the children to spend time on special occasions with each parent. Handovers are also agreed between the parties.
The father seeks to continue the injunction regarding Mr S. I am not satisfied that a blanket injunction is necessary but I certainly agree that Mr S does not represent a suitable role model to be living in the children’s lives as a step-parent. To that extent I will restrain the mother from co-habiting with Mr S and from allowing him to stay overnight in her home.
I see no compelling reason why the children should not be able to attend occasional outings with Mr S or to participate in family events where Mr S may also be present. The mother has clearly become close to Mr S’s family, particularly his mother. I do not consider the children’s welfare will be jeopardised by occasional social interaction with Mr S in this manner.
Accordingly, the orders of the Court will be as set out at the commencement of these Reasons.
I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 28 March 2013
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