ROWE & HIGGINS

[2016] FCCA 1454

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROWE & HIGGINS [2016] FCCA 1454

Catchwords:
FAMILY LAW – Contravention – penalty.

Legislation:

Family Law Act 1975, ss.60CC(3), 7NBA, 70NEB

Cases cited:
Cavanough and Cavanough (1980) FLC 90-851

Gaunt and Gaunt (1978) FLC 90-468
O’Brien & O’Brien (1993) FLC 92-396

Applicant: MR ROWE

Respondent: MS HIGGINS

File Number: MLC 1000 of 2015

Judgment of: Judge Small

Hearing date: 27 May 2016

Date of Last Submission: 27 May 2016

Delivered at: Melbourne

Delivered on: 30 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Hoult

Solicitors for the Applicant: Parke Lawyers

Solicitors for the Respondent: In Person

Counsel for the Independent Children’s Lawyer: Ms Devine

Solicitors for the Independent Children’s Lawyer: Lampe Family Lawyers

ORDERS

THE COURT DECLARES THAT:

1. The Mother did contravene Order 9(c) made by the Federal Circuit Court of Australia 29 April 2015 as amended by the Orders made 17 August 2015 on 3 October 2015 and 10 October 2015 without reasonable excuse.

THE COURT ORDERS THAT:

1. The matter be adjourned to the Duty List of Federal Circuit Court of Australia on 4 July 2016 at 9:45am for Directions.

AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The children X born (omitted) 2012 and Y born (omitted) 2013 (“the children”) shall live with the mother and the mother shall be permitted to remove the children from the Court’s childcare centre this day.

2. All current Orders in relation to the time the father spends with the children otherwise remain in full force and effect.

3. Changeover on Saturday shall take place at the McDonalds restaurant in (omitted) on (omitted).

4. The Mother shall attend upon Dr M on 3 June 2016 or such other date as indicated by the Independent Children’s Lawyer and shall comply with all directions of Dr M in relation to his assessment of the mother which shall address the following:

   (a)the mother’s relevant history (including relevant medical history);

   (b)the mother’s psychiatric, psychological and emotional health and functioning;

   (c)any relevant diagnosis; and

   (d)if appropriate, suggested treatment or management and the likely prognosis.

5. The cost of the report referred to in Order 5 herein be borne by the mother and the Independent Children’s Lawyer shall seek an extension of her grant of legal aid in order to pay those costs on behalf of the mother and Victoria Legal Aid is requested to extend the grant of aid to the Independent Children’s Lawyer for that purpose.

6. The Transcript of the Mother’s evidence given in the proceedings of 27 May 2016 shall be provided to Dr M before his appointment with the Mother.

7. Pursuant of section 13C of the Family Law Act 1975 the Mother:

   (a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Independent Children’s Lawyer;

   (b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

   (c)pay and otherwise be responsible for all costs associated with the Program; and

   (d)provide an appropriate certificate of completion of the Program to the other parties’ lawyers and their lawyers.

8. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

9. The court being satisfied that the mother behaved in a way that shows serious disregard of her obligations within the meaning of s.70NJ of the Family Law Act 1975, it is ordered that the mother enter into a bond for 6 months and inclusive of 30 May 2016 requiring her to:

   (a)to be of good behaviour;

   (b)to obey all extant orders of the Federal Circuit Court of Australia; and

   (c)to attend all further Court dates in the Family Court of Australia.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1000 of 2015

MR ROWE

Applicant

And

MS HIGGINS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The substantive proceedings in this matter are between Mr Rowe and Ms Higgins and are in relation to their two children, X, born (omitted) 2012 and Y, born (omitted) 2013.  Those proceedings were instituted by Mr Rowe in February 2015 when he sought orders that he spend time and communicate with the children.  Orders were made on 29 April 2015, those orders being amended by way of further orders on 17 August 2015. 

3. Mr Rowe filed a Contravention Application against Ms Higgins on 1 June 2015 alleging some 13 counts of contraventions of the orders of 29 April 2015.  He filed an amended Contravention Application on 23 October 2015 alleging a further 30 counts of contravention of the orders of 29 April 2015 as amended on 17 August.

4. The matter came before me for hearing of the father’s contravention application on Friday 27 May, which is last Friday.  At that hearing, counsel for the father advised the court that because of reasons of time restrictions, he would prosecute only three of the alleged 43 or so counts of contravention.  The order alleged to have been contravened in all three counts reads as follows:

   9. The children are to spend time and communicate with the father as follows: 

   (c) on Saturdays, beginning from 9 am to 12 pm for six visits and thereafter from 9 am to 4 pm.

   Changeover was ordered to occur inside the McDonalds restaurant at (omitted). 

5. At the hearing on 27 May, I found that the mother had breached that order on 3 and 10 October 2015 without a reasonable excuse but I was not satisfied that she did not have a reasonable excuse for the breach which occurred on 26 September 2015.  I told the parties that I wished to consider the question of penalty for those two breaches proven over the weekend and that I would deliver judgment on that issue today, 30 May 2016, and this of course is that judgment.

6. I also made an interim parenting order on 27 May providing for the children to be collected from the court’s childcare centre by the father on that day and that they remain in his care until today.  The father’s counsel, supported by counsel for the Independent Children’s Lawyer, proposes that I make a variation to the orders of 29 April as amended on 17 August such that the children remain living with the father for the next four to six weeks, and that they spend no time with their mother in that period.  After that period, the father and the Independent Children’s Lawyer seek orders that the mother spend time with the children only under supervision. 

7. The Independent Children’s Lawyer seeks an order that the mother undergo a psychiatric assessment and she has tentatively arranged for the mother to attend upon Dr M, psychiatrist, on 3 June 2016.  She says that Dr M will be able to provide a report about the mother’s current state of mental health approximately two weeks after that date.  The independent children's lawyer seeks a mention of this matter in the following week so that the parties and the court can consider Dr M’s report.

8. The mother, who is self-represented in these proceedings, seeks that the children remain in her care although she is willing to undergo a psychiatric assessment.  Her position during the contravention hearing was that the children should live with her and spend what she called “minimal time” with the father.  In fact when pressed, it was clear from her evidence that she actually sought that the children spend no time with the father. 

9. On 3 October 2015, the mother took the children to the McDonalds at (omitted) at 9:00 a.m. in accordance with the orders.  The father’s evidence is that he arrived early on that day and sent a text message to the mother to say that he would be attending for changeover at the McDonalds.  A copy of that message is annexed to his affidavit sworn and filed 13 October 2015.  The tone of that text message is polite and cordial.  It reads:

   Dear Ms Higgins, I’ll be at the changeover point, (omitted) McDonalds, at 9 am.  Can’t wait to spend time with X and Y.  Hope your (sic) well.  Take care.  Mr Rowe.

10. It is his evidence that when the mother arrived at 9:00 a.m., she abused him as he approached her and the children, saying, “The kids don’t want you, they don’t like you and they’re scared of you.  Leave them the hell alone.  X doesn’t want to see you.”  He says that X became very upset and began to cry.  He said in oral evidence that the mother had her arm around X and Y – I think the word he used was that she was “enfolding them” – and that she wouldn’t let the children come to him.  It was his evidence that Y attempted to approach him but the mother had not allowed him to do so.  He denied the mother’s suggestion that X was clinging to the mother at the time. 

11. The father says that because X was upset, as she is whenever the mother abuses him, he did not create a scene and did not attempt to force the children to go with him.  It is his evidence that the mother and the children left after approximately three minutes at the McDonalds and at 9.12 am on that morning, the father sent the following text to the mother:

    Dear Ms Higgins, I’m really disappointed that you were only here for three minutes.  The comments weren’t needed in front of the children.  I’ll be waiting at the changeover point to 9.30 am.  I’m very upset and was really looking forward to spending time with X and Y.  Please follow the interim court order and respect it.  Thanks, Mr Rowe.

12. The mother sent the following response to the father by text message at 4.58 pm on October 3:

    Mr Rowe, you have no idea about anything.  Things could have been amicable between us, but you went out of your way to make sure that could never happen.  You got the lawyers and the court involved, and you let your stupid f**king parents control your life.  You are such a loser, and I wonder how old you will be when you start making your own life decisions.  I feel so sorry for you.  You left your family four times.  X and Y have grown up without a father for this long, and they don’t need you ruining their lives now.  Just go away.  Both them and I don’t need you in our lives as your presence is making life worse for us.  I ask X every week about seeing you, and she says every time that she does not want to go or even see you.  Please respect our wishes and go away.  That is all I want from you.

13. The mother’s evidence at the hearing on 27 May was that when she saw the father at McDonalds on that morning, X hid behind her mother and did not want to go with the father.  She said X had become very upset when she saw the father.  Under cross-examination, the mother said that X had asked her if the father would be there when they went to McDonalds that day and on being told that he would, the mother says X tightened her grip on her mother and hid behind her.  She says that as X was becoming increasingly upset, the father left. 

14. She conceded that she had done nothing to encourage the children to go to the father, saying that she thought it would be more stressful for X if she had done so.  She denied that she had “badmouthed” the father in front of the children and says she does not do that.  When asked, the mother said it had never crossed her mind to offer makeup time for the father for the time lost on that day.  When further questioned, the mother said that she accepts that she has a responsibility to encourage the children to see their father but when asked what she did to encourage them to see them in general she stated that she merely asked them if they wanted to go. 

15. In later cross-examination, when asked again what she does to encourage the children’s relationship with the father, the mother said that she had taken them to their day care centre on Tuesdays and Thursdays.  I note that the orders as amended on 17 August provide for the father to pick the children up from the day care centre and spend time with them before returning them to the day care centre on Tuesdays and Thursday afternoons. 

16. When it was put to the mother that she simply didn’t want the children to see the father, she stated that such contact would be “detrimental to their physical and psychological health”.  She nevertheless stated that she had been fully aware on 3 October 2015 that she was obliged to be at the McDonalds at 9:00 a.m. to provide the children for time with their father. 

17. In relation to the events that occurred on 10 October 2015, the father’s evidence is that he arrived at the McDonalds restaurant early with his father for support and that his father had been seated at a table at the restaurant for the whole time that he was there.  He says that the mother arrived at the restaurant at about 9:00 a.m. without the children.  She entered the restaurant, walked past the father and appeared to go to the counter and place an order.  She then went into the bathroom before returning to collect her food. 

18. The father says he approached her and asked her where the children were.  It is his evidence that the mother put up her hand as if to stay “stop” and refused to answer him.  He says that the mother then verbally abused his father and left the restaurant.  In oral evidence, the father said he had seen the mother’s car in the car park and that while he was quite a distance away, he saw that someone was sitting in the front passenger seat after the mother had left the car.  He did not approach the car and did not see the children in the back seat, although he could not be certain that they were not there.  When asked what he meant when he said that the mother had abused his father, he said that she had told his father to “f**k off”.  He said that the mother had told him to stay away from her and then left. 

19. The mother’s evidence about 10 October was that she only vaguely recalled that day but that she did not believe she had said what the father alleges she had said.  She said in oral evidence that the children were in the car with her mother and that she had come into the restaurant to see if she could have “an adult conversation” with the father.  When pressed on what she wanted to talk to the father about, the mother could not say other than that she had wanted to talk to him about the “whole situation”.  She did not have any specific conversation topics in mind. 

20. It was her evidence that the father refused to talk to her and had sent her text messages from the nearby table.  She said she did not go and get the children because the paternal grandfather had made a remark to her which she could not recall but which upset her and there had been an exchange between her and the paternal grandfather.  She conceded that she had told the paternal grandfather to “f**k off” and had then left the restaurant without bringing the children inside for the changeover. 

21. She did not accept when questioned that the responsibility for the children not spending time with their father on that day was hers.  She said that the children would have been taken out of the car if the father and the paternal grandfather had not “had a go” at her.  When questioned, however, she accepted that the reason for being there was to exchange the children and not to have a conversation with the father. 

22. Shortly after the mother left McDonalds on 10 October, there was a text message exchange between the parties in the following terms.  The father:

    Dear Ms Higgins, why have you left the McDonalds?  The abuse wasn’t needed, and you wouldn’t even tell me where the kids were or who was looking after them.  Can you please have some parental communication with me.  Thanks, Mr Rowe.

    And then a little later:

    Dear Ms Higgins, I’ll be waiting at the McDonalds till 9:30 a.m., waiting in hope to see my two beautiful kids.  Please let me see X and Y.  Thanks, Mr Rowe.

    Mother:

    Mr Rowe, do you even know how to tell the truth any more?  It is very clear from your actions today that you don’t want things to be amicable or any sort of parental relationship.  You wouldn’t even speak to me about the kids unless your f**kwit of a father was there, so Mr Rowe, go f**k yourself and leave us alone.

23. Under cross-examination by counsel for the father, the mother conceded that although she understood that court orders were in place, she would make her own decisions about whether the father could see the children based on what she sees as the children’s best interests.  Indeed, Ms Higgins’ defence to the contravention allegations was that she did not believe that it was in the children’s best interests to see their father. 

24. Her behaviour at the hearing, both at the bar table and in the witness box, was argumentative and petulant and she was shocked to hear that the court had power to make the orders such as those sought by the father and the Independent Children’s Lawyer.  Nothing she said on that day indicated that she takes court orders seriously or that she thinks there is any benefit at all to the children in having a relationship with their father. 

25. When I asked her about her evidence that the parties had had an amicable relationship until the father had issued proceedings, she acknowledged that she had stopped the father’s time with the children in early 2015 because he had issued proceedings.  She blamed the lawyers and the court for the current animus and lack of communication between the parties.  The mother very clearly bears no good will towards the father whatsoever.  She blames him for the breakdown of the relationship and accuses him of perpetrating violence against her and of being a “master manipulator”. 

26. She expresses fear of the father and told me that she found it difficult to be in the same room as him.  I advised Ms Higgins that she could look at me while cross-examining Mr Rowe if that would make it easier for her.  She did so while asking her first two or three questions but then began to glance and quite quickly to look directly at Mr Rowe while she cross-examined him.  I could see no sign of fear in either her voice or her body language and she asked her cross-examination questions in a clear and assertive tone. 

27. The matter for decision today is what penalty I should impose upon Ms Higgins for breaching the orders of 29 April 2015 as amended on 17 August 2015 on 3 and 10 October in that year.  Submissions about that issue were heard on 27 May. 

28. It was the father’s submission that as there had been clear contraventions of the orders, the orders that I should make as a result of those breaches should include an order under section 70NBA of the Family Law Act varying the orders such that the children live with the father and spend no time with the mother until further order, that order to provide for the father to pick the children up from the court’s childcare centre on that day and return them to the childcare centre this day. He also sought an order requiring the mother to enter into a bond in relation to any other order made, including orders that might provide for her to spend time with the children. He also sought the order that the mother attend upon Dr M for the psychiatric assessment.

29. The mother’s submission was that taking four and two-and-a-half year old children away from their mother could not be in their best interests and she pleaded with me to allow them to remain in her care.  She said that she had not breached the orders deliberately and that she had genuinely believed that it was not in the children’s best interests to spend time with their father.  She said that she was prepared to provide make-up time to the father for her breaches.

1. It appears to the Court that the mother’s proposal for make-up time was made only when she realised that there was a real possibility that the children would not be returned to her care from the child care centre on that day. 

2. It was the submission of the Independent Children's Lawyer that the mother’s evidence in relation to the contraventions was “incredible in both senses of the word”.  She supported the submission of the father in relation to the variation of the current orders to allow the children to live with their father until further order and in relation to the psychiatric assessment.  She said that the mother had had serious disregard for the current court orders and the Court could have no confidence that she would comply with any orders in the future. 

3. It is the belief of the Independent Children's Lawyer that the children are at risk of psychological harm in the care of their mother and that an order for compensatory time would not be appropriate because the mother displays no ability to foster a relationship between the children and their father.  She believes that the children should spend no time with the mother while settling into their father’s care because it is not in their best interests to be under her influence.  It is her submission that as the adjournment period of proposed to be only a few weeks, it is in the children’s best interests to spend that time only in the father’s care.

4. The Independent Children's Lawyer sought an order that the mother’s evidence from the contravention hearing be transcribed and provided to the assessing psychiatrist on 3 June 2016.

5. The powers of the Court to make orders after a finding that a contravention has occurred are very wide.  In addition to the power to vary the existing order under section 7NBA of the Act, those powers are set out in section 70NEB and they include the following powers to make orders:

   a)that the person who committed the contravention attend a post-separation parenting program;

   b)that there be compensatory time for the other parent;

   c)that the proceedings be adjourned to allow for further applications in relation to the discharge, variation or suspension of the primary order;

   d)that the person who committed the contravention enter into a bond;

   da)that the person who committed the contravention pay a fine not exceeding 10 penalty units;

   e)that the person who committed the contravention pay to anyone who reasonably incurs expenses as a result of the contravention some or all of those expenses;

   f)that the person who committed the contravention pay some or all of the costs of the other party or parties to the proceedings;  and

   g)that the party who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention if the Court does not make any orders in relation to that contravention.

6. This contravention application was made against a background of a persistent and enduring failure of the mother to allow the father to spend time with the children.  While I have found only two contraventions proven and given the mother’s evidence about those two contraventions, it is highly likely that if all 43 or so counts had been prosecuted, I would have found a significant number of those counts proven as well.

7. Court orders are there to be obeyed.  They are not suggestions or guidelines and when they are deliberately and flagrantly ignored, it is an affront to our system of justice.  In my view, a court which does not enforce its own orders is a very toothless tiger indeed.  The mother’s breaches in these proceedings were, in my view, flagrant and deliberate and while the mother asserts that she committed them only because she genuinely believed it was in the best interests of the children, unfortunately for her that is not a defence at law.

8. In the case of O’Brien & O’Brien[1], Smithers J said the following after discussing the Full Court’s decision in Gaunt and Gaunt[2] and the decision of Connor J in Cavanough & Cavanough[3].  This what he said:

   A reasonable excuse in respect of concern as to the welfare of a child is limited to the belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health and safety of a person.  It is not a question as to whether in the view of the custodial parent or in the view of the custodial parent on reasonable grounds that the carrying out of the access order might not be in the best interests of the child.  The question is whether it is necessary to protect the health and safety of a person, including the child.

   [1] O’Brien & O’Brien (1993) FLC 92-396

   [2] Gaunt and Gaunt (1978) FLC 90-468

   [3] Cavanough and Cavanough (1980) FLC 90-851

9. Ms Higgins provided no evidence to support her asserted belief that it was not in the best interests of the children to spend time with their father.  Neither did she provide any evidence that it was necessary for the children’s health and safety not to spend time with him.  At the hearing Ms Higgins said that she was not aware that she would have to provide evidence on that day.  She said that she did not know that it was a final hearing of the father’s contravention application despite having been sent specific written notification of that fact.

10. In those circumstances, it is difficult to believe that she did not understand the nature of the hearing on 27 May.  I can find nothing in her evidence in relation to the two breaches of 3 and 10 October which would lessen her culpability for the breaches that occurred on those days. 

11. I do take into account, however, that these are the first breaches which have been found proven against her and that she is unrepresented in these proceedings.  Nevertheless, the Court must take steps to ensure that Ms Higgins does not think that she can just breach the orders that currently exist whenever she likes.

12. The first order sought by the father and the independent children's lawyer is a variation to the current orders pursuant to section 70NBA. Subsection (2) of that section states that, if I am to consider varying orders, I can only do so if I find that such a variation is in the best interests of the children.

13. The factors the Court must consider when deciding what orders might be in the best interests of the children are found in section 66CC of the Act.  There are two primary considerations set out in subsection (2) of that section.  They are, first, the benefit to the children of having a meaningful relationship with both of the child’s parents and, second, the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

14. Clearly X and Y have been prevented from having a meaningful relationship with their father as a result of the mother’s breaches of the order.  I note that the only independent evidence before the Court in relation to this matter is that of family consultant Ms C who saw the parties and the children for a section 11F assessment in June 2015.  Ms C’s observation was that on seeing their father both children ran to him eagerly, greeted him excitedly and affectionately and that they both enjoyed the short time spent with him very much.

15. It is the submission of the father and the Independent Children's Lawyer that the only way the children are likely to have a meaningful relationship with both parents is if they live with their father as there is no evidence before the Court that the mother is willing to foster such a relationship.  There is much force in that submission.  I see nothing in the evidence before me which indicates that the mother is willing to actively encourage the children to spend time with Mr Rowe.  Indeed, the evidence leads me to believe that the opposite might be true.

16. Ms Higgins’ evidence in relation to the matter of her and the children’s risk of harm is contradictory, to say the least.  On the one hand, she says she is in fear of the father and finds it difficult to be in the same room as him while, on the other, she says that without lawyers or the Court or the paternal grandparents being involved she and the father could sit down together and resolve their differences reasonably amicably.  I note that the parties were unable to do so when they attended upon a family dispute resolution practitioner before the father issued these proceedings.

17. The mother has provided no evidence that the children are actually at risk of harm in their father’s care.  The best argument she was able to provide in that regard was that Y was pushed over by the dog in the father’s house and that that had created fear of dogs in general in Y.  I note that the Independent Children's Lawyer suggested that the dogs be kept out of the house while X and Y are in the father’s care and that would seem to be a sensible suggestion, at least in the short term while Y is getting used to living with dogs.

18. In contrast, there is some evidence that the children are at risk of psychological harm while in their mother’s care.  Counsel for the Independent Children's Lawyer hinted that the children might also be at risk of physical harm if I allowed them to remain in her care but there is no evidence in relation to that before the Court. 

19. There is evidence, however, of the children’s exposure to the mother’s toxic hatred of the father.  The father’s affidavits are replete with incidents where the mother has abused him and sworn at him in the presence of the children when refusing him contact with them.  And the mother herself agrees that she has behaved in that manner, although she denies doing so in the presence of the children.  She does not deny that she thinks that she and the children would be better off if the father simply vanished from their lives.

20. The Court does have concern that, if the children continue to be exposed to the mother’s extreme negative feelings about the father, they will be faced with the contradiction that arises between that exposure and their lived experience of him.  That contradiction is likely to be detrimental to their emotional wellbeing reaching well into their adolescence and adulthood if it does not stop.  Either the mother must stop allowing her personal feelings about the father to be passed on to the children or the children must live with the father.

21. In section 60CC, subsection (3) of the Act, a further 14 additional considerations are set out.  The most relevant of those, in my view, are these. 

22. The first of them is subsection (d), “the likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from either of his or her parents”.   

23. I made an order on Friday that the father be permitted to remove the children from the Court’s childcare centre in order for them to have lunch with him and his parents.  I then made an order, after hearing all the evidence as to the contraventions, that the father pick up the children from the childcare centre after the Court hearing was completed and that they remain in his care until today.  They had not at that stage seen their father for some three months and it was my view that it was in their best interests for the rigid cycle of non-compliance to be broken, at least for the three days between the hearing of the contravention application and today.

24. If I make an order that the children remain in the care of their mother it is possible that she will not comply with orders and that the children will not have the benefit of a meaningful relationship with the father.  In other words, to use the words of the statute, they will be separated from him.  However, if I make an order that the children live with the father and have no contact with the mother for the next four to six weeks they will be separated from her at least for that period.

25. The children have lived with the mother all their lives and there is little doubt that an extended separation from her would cause them some distress.

26. I must also take into account under subparagraph (f) of section 60CC(3) the capacity of the parents to meet the needs of the children including their emotional needs.  I have serious doubts about the mother’s ability to meet the children’s emotional needs.  And while the father has attended some courses to assist him in the area of his parenting ability there must be some doubt, simply because it has not really ever happened, about the father’s ability to take care of the children on his own.  However, I note in that regard that the father lives with his parents who are willing to support him in that role. 

27. Another factor that I think is relevant in this case is found in subsection (g) of section 60CC(3) and that is the maturity, sex, lifestyle and background of the child and either of the parents and any other characteristics of the child that the Court thinks are relevant.  Frankly, neither of these parties impresses as particularly mature.  The father will turn 30 in a couple of months and the mother is just 29.

28. The mother in particular presents as much younger than her chronological age and she has behaved during much of the time the Court has seen her over the course of these proceedings in the manner of a rebellious and truculent teenager. 

29. However, today the mother has presented to the Court saying that she understands now what it means not to abide by the orders, that the removal of the children from her care over the weekend has been an extraordinary wakeup call to her.  She has thought about what she needs to do and she says that she will not only provide the children for time but she will introduce the father to the childcare centre’s directors and ensure that the children spend every part of the ordered time with their father.

30. When I take all the above matters into account as well as the remaining matters set out in section 60CC subsection (3) I do not believe that it is in the best interests of the children to make orders varying the orders as they now stand at this stage. 

31. Therefore, the orders that I will make will be set out in a moment.  They will include an order that the mother attend upon Dr M on 3 June for the purposes of a psychiatric assessment.  Her apparent inability to control her negative feelings about the father in the best interests of the children may indicate that she is suffering from some kind of psychiatric or personality disorder and it would greatly assist the Court in the conduct of these proceedings if that were known and if so if she could receive some assistance for such a disorder.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 15 June 2016