SANDLER and Adams

FAMILY COURT OF AUSTRALIA

SANDLER & ADAMS

[2009] FamCA 823

FAMILY LAW - CHILDREN - With whom a child lives - Children to live with the mother and spend time with the father at times and upon conditions agreed between the parents
FAMILY LAW - CHILDREN - Parental responsibility - Mother to have sole parental responsibility for making decisions concerning the children’s education, health and medical treatment and for all other matters the parents have equal shared parental responsibility

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT:

Ms Sandler

RESPONDENT:

Mr Adams

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

NCC

1118

2008

DATE DELIVERED:

20 April 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

20 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms D Clark
Rankin Nathan Lawyers

RESPONDENT:

Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms O’Rourke
Legal Aid New South Wales

Orders

I give the Mother’s solicitor leave to file in Court the affidavits of:
(a) Mr D sworn 10 April 2009.
(b) The father sworn 20 April 2009.
That all previous parenting Orders be discharged.
That the children G born … July 1998 and M born … January 2002 live with the Mother.
That the children communicate with the Father by telephone at all reasonable times as agreed between the parents.
That the Mother have sole parental responsibility for making decisions concerning the children’s education, health and medical treatment.
Other than is provided for in Order 5, the parents have equal shared parental responsibility in respect of the children.
That the children spend time with the Father at times and upon conditions agreed between the parents.
I give the Independent Children’s Lawyer leave to make an oral application that the mother pay one-half of the Independent Children’s Lawyer’s costs.
That the Independent Children’s Lawyer’s application for costs is dismissed.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1118 of 2008

MS SANDLER

Applicant

And

MR ADAMS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings concerning G born in July 1998 and M born in January 2002 (“the children”). The applicant in these proceedings is the children’s mother Ms Sandler (“the mother”). The children’s father Mr Adams (“the father”) was granted leave to withdraw from the proceedings on 3 October 2008. The paternal grandparents were also parties to the proceedings but they filed a Notice of Discontinuance on 4 March 2009 and their Response was withdrawn and dismissed.
The matter was listed for an undefended hearing before me on 20 April 2009. Final orders were made on this date and those orders are set out in full in the orders section of this judgment. In summary, the orders provide for the children to live with the mother and spend time with the father at times and upon conditions agreed between the parents, for the mother to have sole parental responsibility for making decisions concerning the children’s education, health and medical treatment and for all other matters the parents have equal shared parental responsibility. Those parties who failed to attend this hearing knew of it and that orders may have been made in terms of those sought by the mother.
These are my reasons for making the above orders.

Background Facts

The father was born in 1974 and is currently 35 years of age. He is a driver by occupation.
The mother was born in 1976 and is currently 32 years of age. She is employed in health services by occupation.
The parties commenced a relationship in approximately March 1996. They began living together shortly thereafter when the father relocated from inland New South Wales to Newcastle to live with the mother. They lived with the maternal grandparents at the maternal grandparents’ home in a Newcastle suburb.
In July 1998 the child G was born. After the child was born the parties moved out of the maternal grandparents’ home into leased premises.
The father says him and the mother formally separated for the first time around October 1999. The father moved out of the family home and lived at various friends’ houses while he saved money to establish his own residence. After the parties separated the father spent time with G about one weekend every three weeks. During this time the father became depressed.
In December 1999 the mother was seen at the Emergency Department of a Hunter region Hospital following deliberate self-harm. She made superficial lacerations to her wrist.
In January 2000 the mother, father and G moved to the Central Coast.
The mother says her and the father separated in about March 2000. The mother says she separated from the father as she was concerned about his excessive use of speed. The mother admits that both herself and the father used speed occasionally up to this time but the father had begun to use it much more frequently. Following her separation from the father the mother moved back to Newcastle with G.
On 24 April 2000 the father attempted suicide. He attempted carbon monoxide poisoning by gassing himself in his car. He was hospitalised at a regional Hospital and was later transferred to a Sydney Hospital. The father sustained a brain injury as a result of the inhalation of the carbon monoxide.
In July 2000 the mother completed her health degree. Shortly thereafter she commenced working as in the central coast area.
According to the mother and the maternal grandmother the parties reconciled in January 2001. The mother says that in January 2001 the father moved into the home the mother was were leasing. The mother continued working in health services. In June 2001 the father commenced a six week small business course and after completion, commenced a domestic services business.
In January 2002 the child M was born.
Around November 2002 the mother started working at a Hunter region hospital. Around the same time the father began working full time for a construction company, working Monday to Friday and some Saturdays according to the mother. The maternal grandmother assisted in caring for the children at times that both parents were working.
In December 2003 the parties purchased a home at W.
In or about 2004 the father started a home maintenance business.
In about March 2005 the mother decreased her work hours from fulltime to part-time in order to assist with the care of her ill father. The maternal grandfather passed away in August 2005.
In about June/July 2006 the father relocated to Queensland for work experience in order to obtain his qualifications as a driver. Around January 2007, the mother and the children joined the father in Queensland.
Around May 2007 the mother received news that the maternal grandmother had been diagnosed with follicular cell lymphoma. The mother wanted to move back to Newcastle so she could be with her mother. The mother was also not happy in Queensland as she had no social network and was dissatisfied with her working conditions.
Around July 2007 the mother, father and the children returned to Newcastle and moved in with the maternal grandmother as their house in W was being leased to tenants. They stayed for approximately six months.
In January 2008 the parties moved back into their house at W where the father was often away for six days at a time.
During the April 2008 school holidays, the parties agreed that the children would spend a few days with the paternal grandparents in S. On 23 April 2008 the mother drove with the children to the paternal grandparents’ home. The three of them stayed the night then the mother returned home to Newcastle the following day. According to the mother it was agreed that the children would stay with their grandparents until Sunday 27 April 2008.
On 25 April 2008 the mother ended her relationship with the father. The father left the family home and went to the paternal grandparents’ home in S.
Around 7.30pm on 26 April 2008 the father left the paternal grandparent’s home with the children. The paternal grandfather telephoned the mother to tell her that the father has taken the children. The mother and the paternal grandfather contacted the police. The father spoke to the paternal grandfather on the phone and decided to return home with the children. In the morning of 27 April 2008 the father returned to the paternal grandparent’s home with the children. The children remained with the paternal grandparents and the father in S for the next few weeks. The father enrolled the children at a local school.
According to the mother, on 2 May 2008 the father telephoned her to advise that he was bringing the children to Newcastle to see her that morning. He told the mother to meet him at McDonalds at 9.30 am. The mother said she may not be able to get there in time due to busy traffic but the father said they would leave if the mother is not there by 9.30 am. The mother arrived a few minutes after 9.30 am but the father and children were not there. The mother then went to the former family home and noticed that the DVDs and CDs were scattered across the lounge room floor and a number of framed photos of the children were missing. In her bedroom she noticed an empty bottle of scotch whisky and her bed and doona were soaked in scotch. The tall boy drawers were open and the top drawer was on the bed. The mother then went into G and M’s bedrooms and noticed that all the children’s belongings had been taken. In the back room the contents of the filing cabinet had been emptied onto the floor and a pile of papers had been urinated on. The television had been moved and the remote control was broken. The mother called the Police and a short time later an officer arrived. The police officer advised that he escorted the father out of the home that morning.
On 2 May 2008 the mother filed an Initiating Application in the Federal Magistrates Court at Newcastle seeking, as final orders, for the children to live with her and spend time and communicate with the father as agreed between the parties in writing. She also sought, in summary, the following interim orders:
1.      That short service be granted in respect of this Application.
2.      That service of this Application on the respondent father be dispensed with or in the alternative that the Court order substituted service, such service to be effected on the paternal grandparents.
3.      Recovery order for the return of the children to the mother.
4.      That the children live with the mother.
5.       That the children spend time and communicate with the father as agreed between the parties in writing.
On 12 May 2008 the matter came before Laphthorn FM and was adjourned to 20 May 2008 for an interim hearing. The parties agreed informally for the mother to spend time with the children that weekend.
On 17 May 2008 the mother arrived at McDonald’s in Sydney to collect the children where the father said at the top of his voice: “Slut. STD carrier. She’s full of STD’s. Slut”. These obscenities were called out in front of the children.
On 20 May 2008 the father filed a Response to Initiating Application seeking the following final orders:
1.      That the mother and father have equal shared parental responsibility for the children.
2.      That the children live with the father.
3.      That the children spend time and communicate with the mother as agreed between the parties.
On 20 May 2008 Lapthorn FM made interim orders which provide, in summary, that:
1.      A recovery order issue for the return of the children to the mother and the said recovery order shall lie in the Registry until further order.
2.      The Director-General of the Department of Community Services is requested to intervene in the proceedings.
3.      An Independent Children’s Lawyer be appointed for the children.
4.      Both parties must attend and complete a course in Parenting After Separation approved or nominated by the Manager, Child Dispute Services at Newcastle.
5.      The mother collect the children from the paternal grandparents’ house at 3.30pm on 21 May 2008 and they thereafter live with the mother.
6.      The children spend time with the father:
a)From 9am Saturday 7 June 2008 to 6pm Monday 9 June and the father is free to spend such time in [S];
b)If the father is still living in [S] after 9 June 2008 from 9am Saturday 21 June 2008 to 6pm Sunday 22 June 2008;
c)If the father is living in Newcastle after 9 June 2008:
i) Commencing 12 June 2008 each Thursday from after school until before school on Friday;
ii) From after school Friday 20 June 2008 to before school Monday 23 June 2008.
7.   Both parties are restrained from changing the children’s residence from the Newcastle area pending further order of the court.
8.   Father is to telephone and speak to the children each Tuesday and Thursday between 7.30pm and 8pm.
9.   The matter is adjourned to 30 June 2008 for an interim hearing with priority.
On 21 May 2008 the mother collected the children from the paternal grandparent’s home pursuant to the 20 May 2008 orders. The father refused to return all of the children’s belongings. Both children had nits.
On 28 May 2008 the father delivered the remainder of the children’s belongings at their school. That afternoon the mother received a telephone call from a friend who advised that there were posters of the mother around the neighbourhood with the following writing on them: ‘STD, [mother] STD, here name is […] she has a STD’. These posters contained photographs of her and were located near the children’s school. The mother recognised the photo as one taken by the paternal grandfather earlier in the year, and she says she has seen that photo come up on the screen saver of the paternal grandparent’s computer. The handwriting on the posters was that of the father.
On 28 May 2008 the mother filed an Amended Initiating Application seeking, in summary, the following orders as both final and interim orders:
1.      That the parties have equal shared parental responsibility for the children.
2.      That the children live with the mother.
3.      If the father lives in the Newcastle, Maitland or Lake Macquarie Local Government areas (“the Newcastle area”) that the children spend time and communicate with the father as follows:
3.1 During school term:
3.1.1 From after school Wednesday until before school Friday each alternate week commencing 2 July 2008;
3.1.2 From after school Thursday until before school on Monday each alternate week commencing 10 July 2008.
3.1.3 In the event that the father is unable to take the children to swimming on the Friday, the time in 3.1.2 will be suspended from after school Friday until 9am on Saturday morning.
3.2 For half of school holidays
3.3On Father’s Day.
4.      If the father does not live in the Newcastle area that the children spend time and communicate with the father as follows:
4.1 During school terms from 9am every third Saturday commencing 18 July until 6pm the following Sunday.
4.2 For half of school holidays.
4.3 On Father’s Day.
On 12 June 2008 the father filed an Amended Response to Initiating Application seeking, in summary, the following final orders:
1.      That the mother and father have equal shared parental responsibility for the children.
2.        That the children be permitted to relocate with the father to the Shoalhaven area.
3.        That the children live with the father.
4.        That the children spend time and communicate with the mother as agreed between the parties.
In his Amended Response the father also sought interim orders for equal shared parental responsibility, for the children to live with him and spend time with the mother each alternate weekend from after school on Friday until before school on Monday and one weekday evening each week as agreed between the parties, and that time the children spend with the mother take place at the mother’s residence and be supervised by the maternal grandmother.
In the afternoon on 12 June 2008 the mother received a telephone call from the Principal of C School, which is the school both children attend. The Principal advised that the father has been at the school at lunchtime and wanted to take the children with him then. The Principal advised the father to collect the children after school as provided for in the orders. The father started shouting at the Principal but eventually left. This incident occurred in front of G.
On 13 June 2008 the mother collected the children from school and was advised by the administrative assistant that both children were very tired and both had to come up to the office and sleep. They had spent the previous night with their father and reported that they did not get to sleep till late. The Principal suggested the mother consider a different changeover point.
On Monday 23 June 2008 the mother went to the school to collect the children and their belongings as they had spent the weekend with the father. The administrative assistant told the mother that the children arrived to school out of uniform and their uniforms which were in their bags were dirty. M also had her ears pierced over the weekend and the father did not consult the mother. Later that evening the children told the mother that while they were staying with the father, who it seems was staying at a caravan park, they showered in men’s showers. The mother was understandingly naturally concerned that the girls have been showering in men’s showers.
On 30 June 2008 the matter came before Lapthorn FM and was adjourned to 26 September 2008 for an interim hearing.
On 3 July 2008 Lapthorn FM ordered that all previous orders in relation to the children spending time with the father be suspended until further order and the matter is adjourned to 4 July 2008 for an urgent hearing. Orders were also made by consent on 3 July 2008 providing, in summary:
1.      That the father must:
a)   Within 48 hours of the making of these orders arrange an appointment with a General Practitioner;
b)     Supply a copy of these court orders to the General Practitioner;
c)     Arrange prior to attending the appointment in 1(a) to sign all authorities for his current file with Dr [I] to be transferred to the General Practitioner referred to in 1(a);
d)     Attend the appointment in 1(a) and obtain referrals and attend upon the following services:
i.A Neuropsychologist with a view to providing an updated assessment in relation to the father’s current neuropsychological functioning;
ii.A counsellor available to provide personal therapy following the breakdown of the relationship;
iii.A referral to a drug and counselling service.
e)     Contact Newcastle Family Support with a view to obtaining information on education courses designed to meet the needs of children aged 10 and 6 years.
2.      That the mother must:
a)    Within 48 hours of the making of these orders arrange an appointment with a General Practitioner;
b)   Supply a copy of these court orders to the General Practitioner;
c)   Obtain referrals from the General Practitioner and attend upon the following services:
i.A psychiatrist with a view to providing an updated assessment in relation to the mother’s current psychiatric functioning;
ii.A counsellor available to provide personal therapy following the breakdown of the relationship;
iii.A referral to a drug and counselling service.
3.      The mother and father must submit themselves to urinalysis each alternate Monday to commence immediately on the Monday following the making of these orders and arrange for all authorisations to immediately provide to the Independent Children’s Lawyer a copy of all drug screening reports.

On 4 July 2008 Lapthorn FM ordered in summary, that:
1.      Subject to the father’s availability, he spend time with the children at the Child Disputes Services section of the Family Law Court at Newcastle on 11 July 2008 from 10.00 am to 12.00 noon and on 25 July 2008 from 2.30 pm to 4.30 pm.
2.      In the event that the father is unable to spend time with the children on [G’s] birthday he may communicate with both children by telephone on [G’s birthday in] July 2008 between 3.30 pm and 4.00 pm or as otherwise agreed between the parties through their solicitors.
3.      A copy of these orders be published to the principal of [C Primary School].
4.      The matter is adjourned to 31 July 2008 for further directions as to the appointment of a single expert and the court will consider future supervised periods of time between the father and the children.
5.      Pending further order, the father is restrained from attending the children’s school or taking them from outside their school.
6.      The Court notes that the Director-General, Department of Community Services NSW has advised they do not intend to intervene in these proceedings at this stage but the Court makes a further request for the Director-General to intervene.
Pursuant to the orders dated 4 July 2008 the father spent supervised time with the children on 11 July and 25 July 2008 at the Child Disputes Services Section at Newcastle for two hours on each occasion. Ms L, Family Consultant and Manager of Child Dispute Services at the Newcastle Registry supervised the sessions. Ms L conducted a short interview with the mother and the father separately, and the children were also spoken to briefly. Ms L prepared a short report which is dated 29 July 2008 and she observed that:
During the sessions it was clear that the children missed their father and enjoyed spending time with him. However, [the father] was observed during the sessions to talk about the court matters to, and in front of, the children…
Overall [the father] presented as being unable to protect the children from his emotions and it was clear that they have been exposed to adult issues. [The father] appears to lack insight into the effect of his behaviour and actions on the children. He does not seem to believe that he has had any part to play or responsibility for, the current situation.
[The father] stated a number of times that he intended to withdraw from the Court proceedings and was open about this with the children. This information naturally distressed them. The children obviously love their father however it is important for them to be protected from his emotions, adult issues and from negative comments about their mother.
On 31 July 2008 leave was granted to the paternal grandparents to intervene in the proceedings.
In early August 2008 G told the mother she felt like killing herself because she has not seen her father. The mother spoke to G about this comment and G said she did not mean what she said. The mother also discussed this issue with her general practitioner.
On 3 September 2008 the paternal grandparents filed a Response seeking orders for the children to live with them, spend time with the father as agreed between the paternal grandparents and the father, and spend time with the mother from 10.00 am Saturday until 3.00 pm Sunday one weekend per month, and at such other times as agreed between the paternal grandparents and the mother.
On 12 September 2008 orders were made by consent for the appointment of Dr B, Clinical Psychologist, as Single Expert Witness. Dr B was asked to prepare a neuropsychological report on the father and his report is dated 1 October 2008.
On 2 October 2008 the matter was transferred to the Family Court at Newcastle.
On 3 October 2008 the matter came before Cohen J for an interim hearing and his Honour delivered an ex-tempore judgment and made the following orders in summary:
1.      All orders inconsistent with these orders are discharged.
2.      All orders in relation to parental urinalysis are discharged.
3.      The father is to have telephone contact with the children each Monday and Thursday between 7.30 pm and 8.00 pm and the mother is to make the children available. The mother is entitled to listen to all telephone conversations by use of a loudspeaker system on the telephone.
4.      Leave is granted for the father to withdraw his Amended Response filed 12 June 2008 and his application contained in that Response is dismissed.
5.      The grandparents spend time with the children every third weekend in each calendar month commencing today, except in December which will commence on the fourth weekend, from 10.30am Saturday until 6pm Sunday with changeovers to take place at McDonald’s […].
6.      The children have telephone contact with the grandparents each Wednesday between 7.30 pm and 8.00 pm.
7.      The paternal grandparents are restrained from permitting the father to see the children unless in their immediate presence.
In November 2008 the mother learned the father had moved to North Queensland. Around this time the children started telling the mother that they did not want to go to the paternal grandparent’s home.
On 24 December 2008 the mother and father agreed for the children to spend a few hours with the father and his new partner E.
On 25 December 2008 the mother, father, E and the children spent the afternoon together at Newcastle beach and later had dinner together.
On 27 December 2008 the mother took the children to McDonald’s to meet with the paternal grandparents so they could exchange Christmas presents. The mother observed that the paternal grandfather looked unwell, was very pale and short of breath.
The children spent time with the father on 27, 28, 29 and 30 December 2008.
On 16 January 2009 the mother received a telephone call from her solicitor advising that they have received a letter from the paternal grandparents’ solicitor advising that the paternal grandparents would not be collecting the children for the visit that weekend.
At the end of January 2009 the mother spoke to the paternal grandfather who told her he had been unwell and may need a heart bypass operation.
At the beginning of February 2009 the paternal grandfather was admitted to a Sydney Hospital. The mother took the children to Sydney to visit the paternal grandfather in hospital on 6 February 2009.
On 4 March 2009 the matter came before Registrar Kearney for a case management haring. Permission was granted to the paternal grandparents to file a Notice of Discontinuance and their application contained in their Response filed 3 September 2008 was withdrawn and dismissed. The case was listed for an undefended hearing before me on 20 April 2009.
On 30 March 2009 the mother filed an Amended Application seeking in summary, the following final orders:
1.      That all previous parenting orders be discharged.
2.      That the children live with the mother.
3.      That the children spend time with the father as agreed between the parents and with such supervision as the mother may, from time to time, require.
4.      That the children communicate with the father by telephone at all reasonable times as agreed between the parents.
5.      That the mother have sole parental responsibility for making decisions concerning the children’s education, health and medical treatment and for all other matters the parents have equal shared parental responsibility.
The final hearing took place before me on 20 April 2009.

Family Violence

The mother alleges that there have been numerous incidents of family violence during the relationship. A number of those have been reported to police. One incident occurred in approximately January/February 2000 when the parties were living in Y. The mother told the father she wanted to leave him. The father went into a rage and pulled the phone out of the wall and took all phones, including mobile phones, with him. The mother went to a public phone and rang 000, as well as her mother and brother. When she returned home the father was still in a rage and he threatened the mother she would never see G again if she left him. He then slashed one of the tyres on the mother’s car. The Police attended but no further action seems to have been taken.
Another incident occurred around February 2007 while the parties were living in Queensland. They had a disagreement and while the mother was laying on the lounge the father tipped the lounge forward and the mother fell off. The father then locked the mother out of the house for about 15 minutes. The children were distressed and crying, and G called 000. The Police attended.
The mother also says that the father has been verbally abusive towards her during the relationship and that many incidents were witnessed by the children. He was also controlling.

Substance Abuse

Both parties admit to using marijuana and speed during the relationship. The mother says she has not used amphetamines since they separated in March 2000. She says she has not used marijuana since several weeks before her and the father separated on a final basis in April 2008.
The mother undertook a couple of drug screens pursuant to the Court orders dated 3 July 2008 which came back negative for drugs, results of which are attached to her affidavit filed 10 September 2008.
The father admits to using speed and marijuana in the past, but says he has not used drugs since the parties separated.

Single Expert’s Report

Dr B, Clinical Psychologist, was appointed as Single Expert Witness. By orders dated 12 September 2008 Dr B was asked to prepare a neuropsychological report on the father with regard to the following issues:
1.      Neuropsychological profile of the father.
2.      An opinion as to the father’s current state of neuropsychological health.
3.      The capacity of the father to provide for the needs of the children, including any special needs arising from illness or disability, emotional, intellectual and physical needs.
4.      The attitude towards the children demonstrated by the father.
5.       The attitude towards family violence demonstrated by the father.
6.      An opinion as to whether the children are at risk of physical, emotional or psychological harm in the care of the father and if the children are at risk of such harm, how to protect the children from that risk.
7.      If the children are viewed as at risk in the care of the father, an opinion as to whether the father’s time with the children should be supervised, and if determined necessary, an opinion as to suitable venue and/or contact supervisor.
8.      Any other matter the Single Expert considers relevant.
Dr B’s report is dated 1 October 2008. Dr B described the father’s behaviour during the interview and assessment as “defensive but mostly cooperative”. The father reported to Dr B that he has three other children with whom he currently has no contact. Dr B reports that:
[The father] denied alcohol use but smokes cigarettes. He admitted to using amphetamines heavily until 2000 when he was hospitalised for 6 months following a suicide attempt. He also admitted to both he and [the mother] consuming marijuana heavily ‘for years’ with his last use being when he and [the mother] separated…
[The father] described [G] as ‘blonde and a little pudgy’ and as a ‘good kid’. However when asked about her schooling he did not know which grade she was currently in and had never been to her school nor met her teachers.
While [the father’s] clinical profile indicated an absence of indicators sufficient to meet diagnostic criteria, there were however multiple elevations that warrant review. His profile indicated a concerning elevation on hypervigilance reflecting a high level of suspiciousness of others, particularly around issues of motive and fidelity. He confirmed an abnormally high score on negative relationships which is consistent with an individual who has difficulty trusting others. [The father’s] profile also indicated elevations of anti-social and stimulus-seeking behaviour and verbal aggressiveness. Finally his profile also indicated concerning signs of grandiosity including a belief in him having special talents, achieving remarkable things and that he would be a very good comedian.
He has a stable and positive self-evaluation and is normally confident and optimistic. Socially, his responses indicated that he has a strong need to be accepted by others and tries to avoid conflict. He may be seen by others as too caring, trusting and supportive.
… his language throughout the assessment was considered to be grossly inappropriate and despite repeated requests to restrain himself, he appeared largely unable to do so.
[The father] indicated a great deal of concern for his children and their safety and wellbeing, particularly in the context of [the mother’s] medical problems and her reported persistent inability to look after her health. However, he had difficulty in describing the children beyond their physical appearance and a couple of things they like to do. As noted earlier he did not know which grade [G] was in at school and was unsure of her academic performance. He became distressed when discussing the current requirements to be supervised while having contact with his daughters indicating he would rather not see them if the only option was to be supervised.
In relation to any risk issues when the children are in the father’s care, Dr B concludes that
Given the information gathered during the interview and psychometric testing, there is no conclusive evidence to suggest the children are at direct risk of harm from [the father]. On the balance of probabilities, I would suggest that should the Court permit a resumption of unsupervised contact with [the father] there has been no identifiable increase in risk at a level any greater than has existed for many years since 2001.
Dr B is a well qualified expert and I give his evidence significant weight.

The mother’s circumstances

The mother resides at the former family home at W, New South Wales. This is a three bedroom home and the children each have their own room. She completed her health degree in 2000 and has worked in health services since. The mother is currently employed on a permanent part-time basis as a at a Hunter region hospital. She generally works three day shifts per week from 7.00 am until 3.30 pm. These shifts are on weekdays. She also works one or two weekday afternoon shifts per month and one or two weekend shifts per month. She has the support of her mother, brother and sister-in-law who live locally and are able to assist her with the care of the children if required.
The mother has had insulin dependent diabetes since the age of 8 years which she has had difficulty controlling.
Both children are enrolled at C Primary School. G is currently in Year 5 and M in Year 1. Both children are doing well at school. G is a member of the Swimming Squad and is required to attend six training sessions each week. She generally trains Monday to Friday from 5.00 am to 7.00 am and one afternoon training session a week. M is a member of the Mini State Swimming Squad and is required to do four training sessions each week. She generally trains each Monday to Thursday from 7.00 am until 8.00 am.
The mother has undertaken the following in accordance with the orders dated 3 July 2008. Counselling at Relationships Australia, psychiatric assessment with Dr MC, fortnightly drug screens, enrolled in the Parenting After Separation course with Relationships Australia and Drug and Alcohol counselling with the Drug and Alcohol Counselling Service.
Dr MC, Psychiatrist, prepared a report on the mother and his report is dated 16 July 2008. Dr MC writes that:
I could find no evidence that [the mother] suffers from a psychiatric disorder or a personality disorder. From my assessment of her mental state and character, I can find no reason why she should not have unsupervised responsibility for the care of her two children. My one concern is that her diabetic control and monitoring ought to be tighter, on account of the past pattern of hypoglycaemic episodes and variable blood sugar control…
In my opinion, the deficits in her control of this illness, and her use of marijuana, have both reflected the high levels of tension that she has experienced in a difficult and dysfunctional relationship with her partner over many years, a situation which has now been ameliorated by separation. Her delay in separating from him was clearly the result of apprehension regarding his likely response to her leaving, together with guilt and anxiety regarding the effect that such a separation might have on her two daughters, as well as on [the father].
I found her insightful and highly motivated to improve her health in order to be a better mother to her two daughters. I found her reasonable and fair in her ideas concerning a possible set of arrangements whereby the children might have continuing contact with their father and herself.
I give Dr MC’s evidence significant weight.

The father’s circumstances

The father is currently residing in north Queensland. He is a driver by occupation.
The father says he has fully recovered from his brain injury which he sustained as a result of his suicide attempt in April 2000 except for dysphasia which is a speech disorder where there is impairment of the power of expression by speech, writing, or signs, or impairment of the power of comprehension of spoken or written language. The father says he has an inability to speak words which he has in mind or to think of correct words, and an inability to understand spoken or written words. This causes him to use inappropriate language when he cannot think of the word to express what he is thinking.

Children’s views

Ms J, Social Worker employed with the Legal Aid Commission of NSW, prepared a report in respect of the views of the children at the request of the Independent Children’s Lawyer. Ms J’s report is dated 15 April 2009. The Independent Children’s Lawyer requested an evaluation of the children’s views regarding their relationship with their mother, father and grandparents, their maturity and lifestyle, and the general wishes expressed by each child.
In relation to G who was aged 10 years and eight months at interview, Ms J writes:
In conversation with [G] during this time it was readily evident [G] has become hypersensitive to the separation and the associated conflict between her parents. This has resulted in [G] being caught in a conflict of loyalty between her parents and this is causing a high level of emotional distress. For [G] it is important that she be seen as ‘being fair’ in an effort to simultaneously support her mother and father. [G] displays this same sensitivity towards her grandparents, again in not wanting to cause hurt or disappointment she views her grandparents as being equally important to her and the role they play in her life. I have no doubt [G’s] thinking and feelings in this regard have been influenced by recent events as well as her own sense of ‘fairness’. It is also important to remember [G] was well aware of who would have access to this report and her information…
Whilst [G] identifies choosing between her mother and father as ‘it’s the difficult one, I love mummy and I love dad. I miss mum when she goes to work and I miss dad as well’, [G] was unable to provide an opinion or preference regarding her living arrangements, preferring that choice is made by ‘the court’. However she was able to offer an opinion as to how time with her father should occur. She suggested she would like special time on ‘my birthday, at Christmas and during the school holidays’, she also included telephone contact.
In relation to M, aged seven years and two months at interview, Ms J writes:
What is certain is that [M] loves her mother and father and enjoys a good relationship with both…
[M] initially said she would like to live with her father. However, I would suggest her opinion is influenced by how she currently views the differing parental roles that have been taken up by her mother and father. Her mother is seen as the parent that makes sure she attends school, takes her to swim club and events, makes sure she has a bath, eats properly, etc. But as her father has no daily parental responsibility and only limited contact he can concentrate on providing [M] with a ‘fun time’ during his visits. Therefore, [M] has developed the belief that living with her father ‘will be fun’ but lacks the insight to understand her father would provide her with the same parenting her mother currently provides. However, as this was explored further with [M] she made a number of other suggestions but concluded she would be happy to remain with her mother and [G].

I agree with Ms J’s observations and conclusions, and her evidence is given significant weight.

General Law in parenting cases

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement   necessary:
(i)         to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and
(ii)      to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
By virtue of s 60CA the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act. In a similar vein the Court’s capacity to rebut the presumption of equal shared parental responsibility where the evidence satisfies the Court that it would not be in the child’s best interests refutes any notion that the Act elevates parents above others in parenting cases decided under the present Part VII.

Applying the law to the facts

Both parties have raised concerns about the other parent’s ability to appropriately parent the children. They both made allegations of family violence. When the parties were together, their relationship was volatile and unfortunately the children witnessed a lot of the parental conflict. Both parties admitted to using drugs in the past, and both say they have not used drugs since separation.
There was a lot of conflict between the parties since separation, but to their credit, their relationship seems to have improved significantly. The mother allowed the father to spend time with the children during the Christmas period at the end of 2008 and the mother reports that the children enjoyed spending time with their father and there were no incidents. The mother also reported an improvement in her relationship with the paternal grandparents. I am hopeful that these relationships will continue to improve for the children’s sake. It is clear from the wishes report prepared by Ms J that both children love both of their parents very much, and are strongly attached to both parents as well as the paternal grandparents and the maternal grandmother.
In relation to parental responsibility for the long term care, welfare and development of the children, I am satisfied that the mother should have sole parental responsibility for making decisions concerning the children’s education, health and medical treatment. For all other matters the parents have equal shared parental responsibility.
Turning now to the amount of time the children should spend with each parent, the evidence leads me to conclude that the children’s best interests will be served if they live with their mother. The children are both settled and happy in their mother’s care and are doing well at school. They have spent most of their lives in the Newcastle. The mother intends to remain in the Newcastle area.
One of the factors the legislation requires me to take into account is the children’s views. Ms J was of the opinion that G was caught in a conflict of loyalty between her parents, causing a high level of emotional distress. G wanted to be seen as “being fair” in an effort to simultaneously support her mother and father, and did not want to choose where she wants to live. M initially expressed a desire to live with the father because it would be fun but as this was explored further, she decided she would be happy to remain with her mother and G.
The father is currently living in north Queensland. His plans for the future are not know to the court. He has withdrawn from the proceedings in October 2008. In these circumstances making any structured orders would be counterproductive. I therefore make orders for the children to spend time with the father at times and upon conditions agreed between the parents.
The mother has demonstrated a commitment to promoting the children’s relationship with the father. This commitment was demonstrated by her conduct during the Christmas 2008 period when she allowed the father and his new partner to spend time with the children over numerous days. It is hoped that the mother will continue to promote the children’s relationship with the father as well as the paternal grandparents.

Conclusion

I am satisfied that the mother is committed to being drug free and improving her control of her diabetes. She has done everything the Court has asked her to do, including fortnightly drug screens, counselling, psychiatric assessment with Dr MC, enrolment in the Parenting After Separation course and so on. Dr MC found her to be “insightful and highly motivated to improve her health in order to be a better mother to her two daughters”. I agree with this observation.
I am confident that the children will be well looked after in the mother’s care.
For these reasons I am satisfied the orders identified at the start of this judgment are in the children’s best interests.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 3 September 2009

[2009] FamCA 823

20 April 2009

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