Savary and Garrison - [2009] FMCAfam 1321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAVARY & GARRISON

[2009] FMCAfam 1321

FAMILY LAW – Children – best interest of children – assessment of competing proposals.

Family Law Act 1975, ss.60CA, 60CC, 61DA

Applicant:

MR SAVARY

Respondent:

MS GARRISON

File Number:

BRC4546/2008

Judgment of:

Jarrett FM

Hearing dates:

4 & 5 March 2009

Date of Last Submission:

5 March 2009

Delivered at:

Brisbane

Delivered on:

11 December 2009

REPRESENTATION

Counsel for the Applicant:

Ms Walker-Munro

Solicitors for the Applicant:

Springwood Lawyers

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

DA Family Lawyers

Counsel for the Independent Children’s’ Lawyer:

Ms McDiarmid

Independent Children’s’ Lawyer:

Kyle Terrance

ORDERS

That the children [X] born [in] 1997 and [Y] born [in] 2001 and [Z] born [in] 1994 live with the father.
That the parties have equal shared parental responsibility with respect to the children.
That the mother spend time and communicate with [Z] pursuant to [Z]’s wishes.
That the mother spend time and communicate with [X] and [Y] as agreed and arranged between the parties but in the absence of such agreement as follows:
(a)During school terms and commencing at the first term in 2010, in a three week cycle, for the first two weekends from 3.30pm Friday to 5.00pm Sunday.
(b)Commencing on Monday 14 December, 2009, for half of all gazetted Queensland school holidays being the first half in even numbered years and the second half in odd numbered years.
(c)On Christmas from 2.00 pm Christmas Day until 5.00pm Boxing Day in odd numbered years providing that the children are returned to the father’s care for the period from 2.00 pm Christmas Day until 5.00 pm Boxing Day in even numbered years.
(d)On the children’s birthdays for five (5) hours should same fall on a weekend when the mother is not spending time with the children pursuant to these orders and for two (2) hours should same fall on a school day providing that the children are returned to the father’s care for a similar period should the children’s birthdays fall on a weekend when the mother is spending time with the children pursuant to these orders.
(e)On Mother's Day from 9.00 am until 5.00 pm should same fall on a weekend when the mother is not spending time with the children pursuant to these orders providing that the children are returned to the father's care for a similar period on Father's Day should same fall on a weekend when the mother is spending time with the children pursuant to these orders.
(f)Telephone communication each Wednesday between 6.30 pm and 7.00 pm and the children shall be at liberty to telephone the mother at all other reasonable times.
All changeovers shall occur at [omitted] McDonalds.
These orders shall be sufficient authority to the children's treating doctors and schools and the like to the effect that both parents are able to contact same and be advised of the children's treatment and/or progress and obtain reports, school photographs, newsletters at the expense of the requesting parent.
That each party advise the other of their address or any changes to their address or telephone numbers within forty-eight (48) hours of same occurring.
That each party shall notify the other as soon as practicable in the event that the children suffer a serious accident or illness whilst in their respective care.
The mother be at liberty to attend any school activities which would ordinarily attract a parent’s participation or by invitation from the children's school.
That neither party shall denigrate the other or their partners in the presence of the children and they shall remove the children from the presence of any other person who is doing so.
That within fourteen days, the father remove all venomous snakes from his residence and the father be restrained thereafter from keeping venomous snakes at any premises at which the children from time to time reside.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC4546/2008

MR SAVARY

Applicant

And

MS GARRISON

Respondent

REASONS FOR JUDGMENT

[X], 12 years of age, and [Y], 8 years of age, are siblings. [Z], 15 years of age, is [X]’s and [Y]’s half sister. Ms Garrison, the respondent in this application is the mother of all three children. The applicant,

Mr Savary is the father of [X] and [Y]. He is [Z]’s step-father.
Mr Savary and Ms Garrison no longer live together and cannot agree on the parenting arrangements for [X] and [Y]. This application concerns those parenting arrangements.
The parties are agreed, more or less, that [Z] should be free to choose where she lives and how much time she spends with Mr Savary and

Ms Garrison. In practical terms that will mean that [Z] will live with Mr Savary and spend little time with Ms Garrison. Those arrangements seem appropriate having regard to the nature of the relationship between [Z] and her mother. They are supported by the Independent Children’s Lawyer. I will say no more about this aspect of the case except where relevant to a discussion of the matters concerning the other two children.
Mr Savary says that the best orders for [X] and [Y] would see them live with him and spend five nights per fortnight with their mother. There are other periods of time, particularly school holiday time that he proposes. He says that they should live with their mother for one half of all school holiday periods.
Ms Garrison seeks orders that [X] and [Y] live with her and that they spend each alternate weekend with Mr Savary. She also proposes holiday contact when the children are on school holidays - for one half of the school holidays.
The children have the benefit of representation by an independent children’s lawyer. She proposes that the children live with Mr Savary and that they spend two weekends out of every three with Ms Garrison. She also proposes that they spend one half of all school holidays with her.
There are various other orders including an order for equal shared parental responsibility proposed by the ICL.
Ms Garrison has two other daughters from a previous relationship - [J] born in 1992 (now 17 years of age) and [Z], to whom I have already referred. [J]’s and [Z]’s father, Mr C committed suicide in 1998 whilst being investigated for offences relating to the two girls.
Mr Savary has not repartnered. He lives in a two bedroom unit. [Z] lives with him (by her choice). Until shortly before trial [J] also lived with him. He shares his unit with another teenage girl, [K]. Her connection with this family is unclear, but she may be a cousin or niece of Ms Garrison. [X] and [Y] live with Mr Savary each weekend from after school Friday to before school Monday.
Ms Garrison is presently in a relationship with Mr G. They do not officially live together but they spend considerable time with each other. According to [X], Mr G and his son “lived [at Ms Garrison’s] most of the time”[1]. Mr G has a unit in the same unit complex as

Mr Savary. Mr G has a son, [M] (20 years of age) who apparently lives with him. [X] and [Y] live with Ms Garrison each week from after school Monday to before school Friday.

Principles

Proceedings concerning parenting issues are conducted under Part VII of the Family Law Act 1975 (“the Act”). Section 60B sets out the objects of Part VII and the principles which underline those objects. Those principles and objects are subject to s.60CA in that in determining the outcome of a particular case, the best interests of the relevant children are the paramount consideration. That is the overriding principle.
Section 60CC prescribes the matters that need to be taken into account when determining what orders are in a child’s best interests. It comprises a list of matters that must be considered to the extent that each is relevant to the particular case.
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 varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for their welfare. Section 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a child's parent has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent's family; or
b)family violence.
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Application of the presumption triggers the application of s.65DAA (1) which requires the Court to:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide for (including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if the Court does not make an order for equal time, the Court must consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable. Substantial and significant time and reasonable practicality are defined in s.65DAA(3) and (5) of the Act.
In this case both parents, and the Independent Children’s Lawyer, seek an order that the parents have equal shared parental responsibility for their children. That is so notwithstanding that:
a)each makes allegations against the other of violence in their relationship. Ms Garrison alleges that Mr Savary has been violent towards the children, and in particular [X], but for reasons I have set out below, I do not accept that to be so;
b)communication between the parties is poor.
Notwithstanding those matters, I will make an order for [X]’s and [Y]’s parents to have equal shared parental responsibility for them, largely because the order is one that both parties now accept is appropriate and it is recommended by the Independent Children’s Lawyer. Despite their poor communication with each other, it is apparent that they have been able to communicate with each other in the past about matters concerning the children.
Consequently, along with the parties proposals it is necessary to consider the matters raised for consideration by s.65DAA(1) and 65DAA(2) of the Act.

Consideration

Ms Garrison was born in 1974. She is now 35 years of age. Mr Savary was born in 1973 and he is 36 years of age. Mr Savary is a [tradesman] by trade and operates his own [trade] business. His self-employment provides him a measure of flexibility should the children be in his care during the week. Ms Garrison is not employed.
Neither party suggests that [X] and [Y] will not benefit from a meaningful relationship from the other parent.
Ms Garrison argues that the children at risk of physical and emotional harm in Mr Savary’s care because he is likely to be physically violent to them. She bases her argument upon what she says are her experiences of him during their relationship.
In terms of violence against the children, Ms Garrison alleges that in August, 1998 Mr Savary assaulted both her and [X]. She says that she had [X] in her arms and Mr Savary pushed her to the ground and “kept on punching me whilst I protected [X]”[2]. She says that she “yelled at the girls to call the police. I managed to kick Mr Savary in the groin and grabbed the girls and ran to the telephone box. I rang my sister Ms D… and she sent two of her friends to pick up me and the children.”[3]
There is no evidence that the police attended. There is no evidence from the friends of Ms D who apparently collected Ms Garrison and the children.
Ms Garrison alleges that after Ms D’s friends took her away from the scene of the incident, she took [X] to a doctor where “The doctor noted down the bruises and marks on both me and [X].”[4]
There is no evidence from any doctor about bruises or marks on

Ms Garrison or [X]. There is no explanation for the absence of such evidence.
Ms D gave evidence in these proceedings in Mr Savary’s case. In that affidavit she deposes about the relevant incident. She says that she received a telephone call from Ms Garrison when [X] was approximately 10 months of age. In the call Ms Garrison said

“Mr Savary's bashed me.”[5]
Ms D says that she made arrangements to go to Ms Garrison’s house, but because she lived a two and a half hours drive away she telephoned two friends, Ms and Mr P, who lived closer to the mother’s residence to attend upon the mother and [X] immediately.
When Ms D arrived at [Ms and Mr P’s] residence, however, she saw nothing to indicate that the mother or [X] had been assaulted, the mother said nothing to her of such things, and to the best of her knowledge, the child [X] did not attend upon any doctors. She did not see any evidence of any marks upon either Ms Garrison or [X] suggestive of the assault that was alleged to have taken place.
Ms Garrison and the children spent at least the following week with

Ms D and during that time Ms D says that there was no visits to the doctor as far as she was aware. I accept Ms D's evidence. She was cross-examined but her evidence about those matters was not challenged.
I am not satisfied that the assault, as alleged by Ms Garrison, or any assault as alleged by her on that occasion, took place. In the absence of any evidence corroborating the medical attention claimed to have been sought by Ms Garrison, and in light of the evidence of Ms D, I do not accept Ms Garrison’s evidence about the alleged assault upon her and [X].
There is one other allegation about violence by Mr Savary towards [X]. Ms Garrison alleges that in September 2007, she heard Mr Savary’s car coming into her street to drop off [X]. As she walked to the door, the car pulled up and she claims Mr Savary pushed [X] out of the car forcefully and left. According to Ms Garrison [X] was crying and hysterical. For reasons that I have set out below about Ms Garrison’s credit generally, I do not accept her evidence about this issue.
I have the benefit of a report prepared by Ms B, a psychologist commissioned by the Independent Children’s Lawyer. Ms B interviewed the children in these proceedings as well as [Z]. None of the children made complaint about physical aggression towards them by Mr Savary.
Ms Garrison alleges that Mr Savary was violent to her from time to time. She alleges he was verbally abusive and physically abusive. There are few particular examples given by her of the abuse or the violence but rather simple generalised statements by her to that effect. Paragraphs 44 to 61 of her affidavit filed on 26 February, 2009 catalogue those episodes in respect of which she is able to give particular evidence. When analysed critically, however, there is only one particular incident raised in the evidence. It is as follows:
47. On 25 October 2007, Mr Savary came to my house to collect the children to take them to school as my car had been stolen.
Mr Savary arrived as I was having an argument with [J] over the charge against her for smashing my house. Then both [J] and
Mr Savary started to hit me repeatedly to the ground, laughing at me and calling me names. Mr Savary then took the children and refused to return them to me. [X] was at school camp at the time and Mr Savary picked him up the following day from the school.[6]
At this point, it is necessary I think, to make some observations about the credit worthiness of Ms Garrison. I found her to be a less than impressive witness. Her demeanour whilst giving evidence under cross-examination did not instil me with confidence that her evidence was accurate. I formed the view that much of her evidence was exaggerated. Ms Garrison had difficulty focusing upon the questions asked of her and providing a responsive answer. She was at times confused and her answers confusing.
Counsel for Mr Savary demonstrated significant inconsistencies in her evidence. Perhaps the starkest concerns Ms Garrison’s allegations about the incident in October, 2007 that I have extracted above. Her evidence in her affidavit filed on 9 July, 2008 stands in contrast to her earlier sworn evidence:
3.56 On 24 October, 2007 [J] had been physically abusive towards me because I would not give her money.
3.57 Mr Savary arrived at the house as [J] was punching me. Mr Savary took the children with him.[7]
I accept that on the face of the affidavit material and having regard to what was said by Ms Garrison in cross-examination, there are at least four different versions of the October, 2007 incident in evidence. The inconsistencies do not appear to be explained simply by the passage of time and the dimming of recollection. They are substantially different.
Given the inconsistencies in her evidence about that incident, I am not prepared to find that there was an incident as described by her in her affidavit filed in February, 2009. I accept that the children passed into Mr Savary’s care, but not in the way that Ms Garrison claims. I am not satisfied that there was any physical aggression exhibited by Mr Savary towards Ms Garrison on that occasion.
Moreover, Ms Garrison gives evidence of two occasions when her home was broken into and on one occasion an offensive message was scrawled on the bathroom mirror. There is, however, no evidence that connects Mr Savary to those incidents. I decline to draw any inference that he was responsible for them. There is no basis in the evidence upon which to do so.
When he was cross-examined Mr Savary admitted that the parties’ relationship included acts of violence by one to the other. Indeed, he says as much in his affidavit filed on 26 February, 2009 (para.33). He said it was both ways. I accept his evidence about that. There is little particularity of what he means when he speaks of violence, although he does suggest that Ms Garrison attacked him with a piece of wood and threw a television at him. I am inclined to accept that evidence because it is generally consistent with Ms Garrison’s demeanour described by her half-sister Ms D.
I accept Mr Savary’s evidence that he has not been violent in a physical sense towards the children. I accept his evidence that he has disciplined the children physically from time to time but there is no evidence (apart from Ms Garrison’s testimony) to show that the discipline exceeded what the parents in this case considered acceptable and reasonable. There is no evidence that I accept that Mr Savary has used excessive or unreasonable force against the children. It was put to

Mr Savary in cross-examination that he had been physically aggressive towards the children and that he had excessively punished them in a physical way. It was suggested that [X] had been making such complaints to his mother and there was no reason to doubt the child’s statements. Mr Savary rejected them, but I should point out that there is no evidence of the child ever having said such things.
In my view, there is no need to protect these children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence if they are in Mr Savary’s care.
There is, however, a need to protect [X] and [Y] from psychological and physical harm from being subjected to, or exposed to, abuse, neglect and family violence when they are in Ms Garrison’s care.

The evidence of Ms D amply demonstrates, in my view, that

Ms Garrison has a propensity towards excessive consumption of alcohol and when that occurs she becomes aggressive, yells, and in the past has yelled at the children in ways that have made the children so scared that they have been moved to contact Ms D and ask her for assistance. Her affidavit filed on 26 February, 2009 catalogues a number of occasions upon which she was called by the children, some times in the early hours of the morning, complaining that their mother was “going off”.
I accept her evidence, largely because it was not challenged, that she would attend at the mother’s residence and find evidence that the mother had been consuming alcohol and that the children had been left essentially unattended.
There is considerable evidence, some of which is to be found in her own affidavits, of the mother’s violent relationship with her daughter [J]. There is evidence that some of their physical altercations occurred in the presence of the [X] and [Y].
[Z] has lived with Mr Savary since October, 2007. She was assessed by Ms B “as a sensible fourteen year old. She seemed to have thought a lot about the issues we discussed and to be happy where she was living with her mother’s former partner.”[8]
[Z] told Ms B that she prefers to live with Mr Savary even though he is only her stepfather. She told Ms B that her mother was some times drunk and the reason she went to live with Mr Savary was because her mother had wrongly accused [Z] of being drunk. It was her mother who, in fact, was drunk according to [Z]. [Z] was concerned that the mother on that occasion was trying to take [Y] with her in a car to see a friend of the mother’s. [Z], her sister [J] and another friend, [K] would not permit Ms Garrison to do that and they rang Mr Savary to come and get the children and, in particular, [Y]. Mr Savary arrived and collected the children.
[Z] considered that her mother was “just an alcoholic”. She claimed to Ms B that when [Z] was little, her mother used to tell them lies about everyone so they would be close to her. She would believe it but then when she was about 12 years of age she realised “it was all a complete and utter lie”. She started to “not give in to her anymore” and she said her mother tried to bribe her with money. She complained that her mother was often drunk.
[Z] had no complaints about living with Mr Savary. She paints a picture of Mr Savary’s household of a close family who all pitch in to make life a little easier for each other notwithstanding the cramped conditions in which they live. [Z] did not see her mother very much and did not want to. Her observation was that [X] and [Y] were happy when they were with Mr Savary and when they were with their mother they were always “watching TV”.
I am satisfied that Ms Garrison’s care of the children is sometimes compromised by her consumption of alcohol. There is evidence of at least one poor decision made by her when affected by alcohol that had the potential to put the children at risk of physical danger.
Ms B interviewed the children as I have already pointed out. [Y] expressed strong wishes to reside with Mr Savary. Indeed on the first occasion that Ms B interviewed [Y] and she was required for the purposes of the interview to leave Mr Savary and go into

Ms Garrison’s care, [Y] behaved very badly. In fact, so badly that

Ms B was given cause to describe her behaviour as “the worst I've seen in 30 years of clinical practice”. She described [Y]'s blood curdling screams. [Z] told Ms B that her behaviour on the day of the interviews was the same as the behaviour that she undertakes when she does not wish to go to school. I have set out [Y]’s behaviour, and Ms Garrison’s response to it, in more detail below.
Ms B interviewed [Y] and [X] on both 15 September, 2008 and

17 October, 2008. On 15 September, 2008 Ms B noted that [Y] looked sad and was mute. She would not make eye contact with Ms B and was always looking away and down. She was difficult to engage. When she suggested that [Y] might like to live with her mother, [Y] shook her head violently. When she was asked if she did not want to live with the mother, she shook her head. She nodded when she was asked if she wished to live with her father and saw her mother less. She also said to Ms B, “I want my daddy”.
Ms B described [Y] as presenting as an extremely immature child who has “major problems with social and emotional control”. Her behaviour during the first set of interviews suggested that she could be suffering oppositional defiant disorder and that she had a severe separation anxiety disorder (perhaps with underlying defective attachment to one or other or both of the parents) or for some reason have not been adequately socialised (as suggested by the father who said the mother did not take her out enough). The father said that she was very shy and took about a month to relax with anyone new, and then she was very friendly towards them.
[Y] was noted to: “appear extremely distressed throughout the assessment process and to bite her nails and keep her eyes downcast while talking to me personally.” When she was interviewed again on 17 October, 2008 Ms B formed the view that [Y] was quite a different girl. [Y] indicated to her that she recalled “cracking up at the Court” and that she had “other crack ups” when she had left Dad to go to her Mum. She says that it was just about leaving Dad and she wanted to be with him. She told Ms B that she liked being with her Dad and that she liked his snakes.
When she was asked about what the best thing was at Mum’s place, she could not answer. She noted that she answered the question about what was the worst thing at Mum’s place but she was very clear to point out that there were “no bad things at Dad’s place”. She added that there were “no bad things about Mum’s either”. She thought it would feel good if she lived with her Dad and had every second weekend with her Mum. She told Ms B that it would not feel good if she was to live with her Mum all the time and see Dad a little bit on holidays (at that time it was the mother’s proposal to relocate to Newcastle and for the children to have time with Mr Savary during school holidays).
On 15 September, 2008 [X] told Ms B that the arrangements then in place were good (he was living with his mother and seeing his father each weekend). He told her there was nothing he would change. He liked staying at Mum’s best because he saw all his friends. They were friends that lived near him. He said that he also had friends near Dad’s place and he made friends easily. The best thing about his father’s place was seeing his snakes and holding them. [X] said that he would feel a bit sad if he was asked to live with his Dad and see his Mum every second weekend and he did not have to change school. He said he would miss his Mum. He said if he had to live with his Dad and change school things would be much worse. The main thing would be missing his Mum. He told Ms B that having every weekend with his father worked for him but perhaps some time with his mother on weekends would also be good.
On the second interview on 17 October, 2008 [X] told Ms B that sometimes he would like to go to New South Wales because down there, “every single three months there’s a two week holiday” and he could see his Dad then. He told Ms B that he would like to go to New South Wales because he had his friends and cousins there as well. He said that he enjoyed his weekend time with his father some times but some times he did not as they went to his father’s friend’s house and stayed there for a few hours and there was not much to do. The attraction with being at his mother’s house, particularly for weekends for [X] seemed to be the presence of others, namely the mother’s current partner’s son, [M], and [X]’s friends from school.
It is clear form Ms B’s report that [Y] is strongly of the view that she should live with her father, but that her views should not attract significant weight because of [Y]’s age and immaturity. While I record her views, I do not think I can accord them much weight.
[X]’s views changed over time. Ms B records that after her first set of interviews, [X] had expressed that he would be “a bit sad” if he lived with his Dad and saw his Mum on weekends, that he would miss his Mum and he would miss his school friends if he had to change schools. He saw some positives in his father’s care however. After the second interview, [X]’s views had changed and were firmly focussed on living in New South Wales. According to Ms B this change coincided with a change in his school attendance pattern, refusal to attend school and some refusals to attend his father’s place on the weekends.
Ms B assessed that [Y] is more closely attached to her father than her mother and that [X] is closer to his mother than his father. [X] is comfortable with both parents. [Y]’s relationships with her parents are complex. Her relationship with her mother is fraught and according to Ms B [Y] is exhibiting difficult behaviour that is “anxiety based and related to her mother in some way”.[9] Ms Garrison is described by Ms B as having “disastrous” relationships with her daughters [J] and [Z] and [Y]’s relationship with her is “heading in the same direction”[10].
It is clear from the evidence in this case that [Y] has significant behavioural problems. The evidence satisfies me that she is a child given to having tantrums when she is required to go to school and perhaps at other times when she is required to do something that she does not wish to do. The cause for her extreme behaviour is unclear. What is clear is that Ms Garrison does not have the capacity to deal effectively with [Y]’s behaviour. Ms B records in her report:
7.2.2 When I went to the foyer area at lunch time, I noted that the mother, her partner, his son, [Y] and [X] had not left the precinct of the court as requested. The mother was tearful and standing watching [Y] as she screamed and kicked the door to the mediation rooms. She seemed defeated. She said it was "not always like this". It was at this stage that the father was asked to take [Y] for lunch as she was totally out of control and screaming for him.
7.2.3 After the observation session with the father, I asked him to leave and set up a complicated arrangement whereby he would be in a room with the children and would hand [Y] directly to the mother as [Y] behaved in a crazed fashion with the potential for serious self harm whenever there was a suggestion that he was going to leave or that [Y] should go to her mother.
7.2.4 The child was transferred to the mother's care in the observation play room and she literally went berserk. She was kicking at the door. I held it for a little while and then with the assistance of an in-house family consultant who held it for me I attempted to continue to observe what was happening in the play room. This had to be abandoned as the child was becoming seriously distressed in the room with the mother and her siblings. As soon as pressure on the door was released, [Y] raced out of the room and into the waiting room with the mother slow to follow and me hot on her heels.
7.2.5 At my request the mother tried to reason with [Y] - as she had done over going to lunch earlier. [Y] punched and kicked at her mother and screamed at the top of her voice. The mother had no resources to cope and just kept asking the child why she was doing this. She said she wasn't “a bad mummy". The child told her she was "a bad mother" and that she hated her.
7.2.6 [Y] continued thrashing around and screeching with blood curdling screams as the mother tried to reason with her. The mother gave up and I tried to talk to [Y]. I said we would go and ring Daddy and that she could come into my office and sit and tell me why she felt this way about Mum and Dad. She was hysterical and would not I could not take in what I was saying. I told the mother that I thought I should ring the father. The mother said she thought the child needed "a doctor". The child's behaviour was maintained without let up whilst I left the scene and told the mother that she needed to manage the situation. I said that it could not be allowed to continue and that we would need to reschedule the remainder of the interviews and observations. I left the mother in the waiting area with the child after asking her partner, Mr G (who was sitting watching silently), to go and lend support to help the mother take [Y] from the area as I was concerned she could seriously harm herself in the marble and glass environment near the lift area. By this stage security was present and watching events unfold.
7.2.7 [Y] resumed kicking the door to the mediation section and didn't want to go with the mother. She was still screaming and wild with no sign of settling after about half an hour. In the end, I said I was going to call the father. The mother said not to do this as then the child would "always do this". She said she had appointments with a school counsellor as [Y] did this at other times as well - "but never as bad as today". She said she would "eventually settle down", but there was no sign of this occurring.
7.2.8 As the child's behaviour was creating an unacceptable level of disturbance on Level 3, I said that if the mother did not allow me to call the father (whom the child had been calling for) she would have to handle the situation herself and take the child home. The family ended up getting into a lift with [J] aged 16 carrying [Y] as she refused to go to her mother. Security was standing by but could do nothing as the child would have needed to be manhandled.
The mother has been similarly powerless to deal with [Y]’s behaviour when she has refused to go to school. So concerning was her behaviour that [Y]’s school made a referral for her to see Child and Youth Mental Health Services. That referral has not resulted in any assistance for [Y] largely because when the referral was activated earlier this year,

Ms Garrison raised allegations that [Y] had been sexually abused or may have been sexually abused or in some other way inappropriately dealt with by Mr Savary. That was enough to stymie any assistance for [Y] because the Service would not intervene until that matter had been dealt with.
The sexual abuse allegations surfaced in an express form during the course of cross-examination of the mother. They were not part of her written evidence. Her oral testimony was that in about October, 2008 her neighbour had said to her that [Y] had said to the neighbour and to the neighbour’s children “things” which were very concerning.

Ms Garrison’s evidence was that she stopped the neighbour from telling her what it was that [Y] had said because she “did not want to know”. She also said that her current partner, Mr G had also said to her that [Y] had said to him some things which concerned him and which might indicate that [Y] was being dealt with inappropriately by

Mr Savary. Again, in cross-examination the mother’s evidence was that she “did not wish to know” about that matter and stopped Mr G from telling her.
The allegations were not just made in the course of the trial. The allegations were reported by Ms Garrison to [Y]’s school principal. He told Ms Garrison to report them to DOCS. She says that she thought the Principal was going to report them to DOCS. I accept the Principal’s evidence on this point. I accept that he told Ms Garrison that she needed to take the matter up with DOCS and I accept that she failed to do so.
I accept that Ms Garrison mentioned the allegations in a general way to Child and Youth Mental Health. As a result of mentioning those allegations, Child and Youth Mental Health told Ms Garrison that they could do nothing for [Y] until those allegations were investigated. Thus, informing Child and Youth Mental Health of the allegations of impropriety by Mr Savary towards [Y] effectively stymied any chance that [Y] had to receive some assistance from Child Youth and Mental Health.
Mr G swore an affidavit that was filed and used by the mother in these proceedings. His affidavit mentions nothing of his conversations with [Y] that caused him concern as claimed by Ms Garrison. There is no affidavit by the other witness – the neighbour – that the mother claims had told her of what [Y] had said. Mr G’s evidence was less than satisfactory. He was asked about his conversations with [Y] in cross-examination. He said that he told the mother about the conversations and he agreed that he was concerned by what it was that [Y] had said to him. He thought it was an important issue and knew that it might be an important issue in this case. Nonetheless his conversations do not appear in his affidavit. He could offer no explanation whatsoever for that omission.
I formed the view that Mr G did indeed have a conversation with [Y]. I accept his evidence that she said to Mr G that she slept with her father and that she liked sleeping with her father and that she wanted to sleep with her father. I do not accept that there is any evidence at all that suggests that there ought to be placed upon those words uttered by [Y] any sinister construction.
On any view, the handling of the allegations of misconduct by

Mr Savary towards [Y] by the mother warrants criticism. I accept the submissions made both by Counsel for both the Independent Children's Lawyer and the father that Ms Garrison’s evidence is concerning. If her evidence is true and such things were said to her, then in circumstances where the mother’s two elder children had been subjected to sexual abuse by their father, to do nothing demonstrates that the mother has no capacity to act protectively for [Y] when circumstances require it. On the other hand, if the allegations are false – no such things were said to Ms Garrison - to utter such false allegations deprived [Y] of some much needed assistance from Child and Youth Mental Health. Ms Garrison knew that her allegations had prevented that service from providing assistance to [Y].
I do not accept that Ms Garrison was unable to request, source and receive assistance to deal with [Y]’s difficult behaviour. She has not done so. There is some evidence that she has worked with the school with a view to attempting to have [Y] attend school more frequently and regularly but that is something, it seems to me, instigated by the school not by Ms Garrison. As is demonstrated by the evidence dealing with the sexual abuse allegations, when left to her own devices, Ms Garrison is ineffectual in seeking or following up on relevant assistance for her daughter.
I am not satisfied that Mr Savary has the same lack of capacity. There is evidence that whilst in his care [Y] is better behaved. There is evidence that Mr Savary has been able to, to the extent he has been permitted by Ms Garrison, assist with [Y]'s behaviour. There was some veiled criticism of Mr Savary's approach to taking [Y] to school. That is, he would drop her off and leave rather than drop her off and remain. But the evidence of the school principal, Mr B, makes it clear that there is no criticism to be levelled at the father for that, indeed, Mr B's evidence was that that might have been the best thing in the circumstances.
There is evidence from [Y]’s current school, [E] State School, that since August 2008 she has presented to school on very few occasions. Indeed the father’s case is that the mother does not have the capacity to ensure that these children attend school regularly and in accordance with the required government guidelines. He has been successful in having her attend school and has worked with the school to achieve that outcome.
Ms B had the opportunity of perusing records produced by the schools at which the children have attended, both in Queensland and in New South Wales. She also reviewed [Z]’s attendance records. A summary of those records is set out in Ms B’s report commencing at para.10.3. It was not suggested by either party that the summary prepared by Ms B was inaccurate and I accept it. It demonstrates a most concerning level of absenteeism on the part of [Z] when she attended [C] State School from 7 September, 2000 to 28 March, 2002. It also demonstrates a high level of absenteeism for [X] and [Y].

Insofar as [Z] is concerned, more recent records demonstrate that she is a reasonable student, achieving some As, mainly Bs and some Cs in her results and that she has, of recent times, been attending school on a regular basis. She told Ms B that she enjoyed school and that she wishes to go on to tertiary study. [Z]’s view is that the only opportunity she will have to reach her potential and achieve an OP score will be to live with Mr Savary.
I am not satisfied that Ms Garrison has the capacity or motivation to ensure that the children attend school as they ought. I am not satisfied that Ms Garrison has the capacity to meet the children’s intellectual needs in that respect. There is a long history of her children missing considerable amounts of school without reason. Mr Savary, on the other hand satisfies me that he is genuinely concerned about the children’s academic progress and he has taken steps to address [Y]’s difficulties with going to school. He has worked to overcome her resistance to attending school and has achieved a measure of success.
Mr Savary is acutely aware that [X] and [Y] have missed much school. I accept that he understands the importance of them attending school. It is of note that [Z]'s school attendance has been remarkably better since she has lived with Mr Savary.
[X] suffers from poor school attendance. There is no explanation for his failure to attend school other than that [Y]’s behaviour has led to him missing school because the mother has been unable to ensure [X] attends school because she has been attending to [Y].
I have concerns about Ms Garrison’s capacity to meet the emotional needs of these children. She has for a long time, it seems from the evidence, suffered from depression. Her own evidence was to that effect. There have been three episodes where she has made an attempt on her own life, the most recent being in October, 2007. She described that attempt as a serious one.
There is no medical evidence before me; no evidence from the hospital to which she was admitted at the time of her most recent suicide attempt nor any other evidence. Ms Garrison says that she has been referred to a psychiatrist and has, as of two weeks ago, put in train steps to be placed on a list to receive that service. But it is concerning that her depression and psychiatric concerns have been of such long standing, yet it is of only very recent times that she has chosen to follow up any recommendations for her. I do not lose sight of the fact that she has engaged in counselling with Lifeline.
I am satisfied that both parents have the ability to provide for the physical needs of these children. It was suggested in submission that Mr Savary’s accommodation presents risks for the children. First of all, it is cramped. There are two bedrooms, one occupied by [Z] and some times [J] or [K]; the other bedroom occupied by [Y] and [X] from time to time when they are with Mr Savary. Mr Savary usually sleeps on a mattress on the floor in the lounge room.
In the entrance way and lounge room of his unit are a number of melamine boxes with glass sliding fronts. In the boxes Mr Savary keeps snakes. There are 24: seven of which are venomous. The balance, as I understand the evidence, are pythons of some description. The venomous snakes comprise three red bellied black snakes, one collett snake and three death adders. The cages are locked with keyed locks and each lock has its own key. Mr Savary keeps the keys hidden and, he says, safe. [Z] told Ms B that she likes the snakes, as did [X] but that he is not able to touch them unless Mr Savary is there.
Ms Garrison argues that the presence of the snakes themselves present a physical risk for these children. It is not impossible to imagine that there might be an occasion when one of the venomous snakes escapes or there is an accident which causes one of the cages to be damaged and the snake to escape. There is no evidence that that has ever occurred and Mr Savary was not cross-examined about it ever having happened in the past but, commonsense dictates that it is, of course a possibility.
Recognising that possibility, Mr Savary offers to the Court an undertaking that he will, as soon as possible, remove the venomous snakes. Whilst the presence of the snakes, venomous or non venomous, present risks the real question is whether there is an unacceptable risk of harm. If Mr Savary removes the venomous snakes, in my view, there is then no unacceptable risk of harm for these children. It was not suggested that the non venomous snakes presented any particular risk for example, by reason of their size.
I am satisfied that these parties will comply with any orders made by this Court in terms of the children spending time with the other parent. I am not entirely satisfied that either parent in this case is better placed to facilitate and encourage an ongoing and continuing relationship between [X] and [Y] and the other parent. There is no communication between these parents, although in the past when emergent situations have required it, they have been able to communicate for the sake of their children. But on a day to day basis, communication is entirely absent.
I formed the impression that neither had much regard for the other as a parent, and certainly both had very little by way of trust in the other parent. Neither demonstrated respect for the children’s relationship with the other parent. Much of the focus of the case from both the father and the mother was on the parent’s perceived entitlements. That is, how much time the mother should have the children and how much time the father should have with the children rather than what was in the best interests of these children.
Ms B suggested that [Y] would deal with a change in her residential arrangements without much difficulty. She also suggested that [X] would deal with those changes as well provided they remained attending at the school at which they are attending now. Although [X] would miss his mother and although the children are probably primarily attached to the mother, especially [X], Ms B saw no particular difficulty in an order which would see the children live primarily with Mr Savary.
Ms Garrison points out in her affidavit the children have an aboriginal heritage and that that is important to her. There is no particular evidence on the significance of their cultural backgrounds or any particular plans by either party to ensure that that cultural background is fostered and encouraged.

Conclusion

Having regard to the matters set out above I am satisfied that the proposal outlined by the Independent Children's Lawyer is the proposal which will best meet the needs of these two children.
An equal time arrangement is not appropriate, in my view. That is largely because it will not permit of consistency of approach in managing [Y]’s behaviour over the school term. Ms Garrison cannot do it. Mr Savary probably can.
I am satisfied that in the father’s household, these children will have their right to proper education respected and it is likely that they will become more regular and frequent attendees at school in his care. I am not satisfied that the mother has the capacity to ensure that that will happen in the future. I am not satisfied that there are any unacceptable risks of harm in the father’s household provided he removes the venomous snakes. He has told me that he will do so.
There are present in the mother’s household the risks of harm that I have identified above. That those risks are real can be seen in the nature and extent of her relationship with [Z], and to the extent that the evidence permits a finding about it, her relationship with [J].
There is no evidence, in my view, to suggest that Mr Savary’s relationship with [Z] or [K] is anything other than appropriate.
For those reasons the orders will be as outlined by the independent children's lawyer.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:

Date:

[1] Family Report page 27 para 8.1.19

[2] Affidavit of Ms Garrison filed on 9 July, 2008, para 3.29

[3] Affidavit of Ms Garrison filed on 9 July, 2008, para 3.30

[4] Affidavit of Ms Garrison filed on 9 July, 2008, para 3.31

[5] Affidavit of Ms D filed on 26 February, 2009, para 8

[6] Affidavit of Ms Garrison filed on 26 February, 2009, para 47

[7] Affidavit of Ms Garrison filed on 9 July, 2008, para 3.57, 3.57

[8] Family Report page 31 para 8.3.11

[9] Family Report page 42 para 11.2.5

[10] Family Report page 42 para 11.2.7