Scanlan and Donald - [2009] FMCAfam 1448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCANLAN & DONALD

[2009] FMCAfam 1448

FAMILY LAW – Children – final arrangements for care of children aged 8, 6 and 5 – serious issues of violence and drug abuse – children independently represented – both parties are Aboriginal – considerations of the children’s cultural background – both parties recently sentenced to immediate terms of imprisonment – father and children live in [B] – mother living in [L] on parole – mother wishes children to live with her in [L] – potential effect of this change on children – how children can be protected from harm – best interests.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DAA, 65DAA

Davis v Davis (2007) 38 Fam LR 671
B & R and the Separate Representative (1995) FLC 92-636
In the Marriage of Patsalou (1994) 18 Fam LR 426
JG & BG (1994) 19 Fam LR 255

Applicant:

MR SCANLAN

Respondent:

MS DONALD

File Number:

ADC 2540 of 2008

Judgment of:

Brown FM

Hearing dates:

23 & 24 November 2009

Date of Last Submission:

24 November 2009

Delivered at:

[B]Broken Hill

Delivered on:

25 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr Burton

Solicitors for the Applicant:

Doyle, Kingston & Swift

Counsel for the Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms Du Barry

Solicitor for the Independent Children’s Lawyer:

Legal Services Commission

ORDERS

The parties have equal shared parental responsibility for the children of the relationship [X] born [in] 2001 and [Y] born [in] 2003 and [Z] born [in] 2004 (hereinafter referred to as “the children”).
The parties are to consult with one another about major long term issues pertaining to the children and are required to make a genuine effort to come to a joint decision about such matters, which include but are not limited to educational and medical issues pertaining to the children; cultural and religious issues pertaining to the children; the changing of the children’s names; changing the school enrolments of any of the children; and the relocation of the residence of the children so as to impinge upon the existing parenting arrangements for the children.
The children live with the father in [B].
The mother spend time with the children as follows:
(a)For four consecutive weeks during each end of year New South Wales school holiday so that Christmas Eve, Christmas Day and Boxing Day fall into such four week period in alternate years commencing with the Christmas period of 2009 but also providing that the mother is to return the children to the father at least two days prior to the commencement of school in each year;
(b)For one week during each of the autumn (April), winter (July) and spring (October) New South Wales school holiday period provided that the mother return the children to the father’s care two days prior to the date on which school is scheduled to recommence and the children spend the four days of Easter with each of their parents in alternate years commencing with the children spending the Easter period in 2010 with the mother;
(c)In [B] for up to three weekends of each school term on the mother giving seven (7) days notice to the father of her intention to visit [B] on which occurrence the mother is to spend from after school on Friday until the commencement of school the following Monday with the children;
(d)On the weekend of Mother’s Day each year at times to be agreed between the parties and failing agreement to be in [B] between 9:00am on Saturday until 6:00pm the following Sunday provided the mother is in [B]; and
(e)At any other times and conditions as agreed between the parties from time to time.
The mother have telephone communication with the children each Tuesday and Saturday at 6:00pm (Eastern Australian time) with the mother to contact the children on the father’s landline (number omitted) or such other number as is agreed between the parties with the father to take all reasonable steps to ensure that the children are available to take the mother’s call.
For the purposes of the children spending time with the mother pursuant to order (4) hereof the parties are to exchange the children at the [L] Post Office, New South Wales or any other such location in [L] or elsewhere as may be agreed between the parties.
The mother may communicate with the children at all reasonable times in writing by letter or email.
Each party is to keep the other informed of his or her residential address, mobile telephone number, home and work telephone number and inform the other forthwith of any changes in such details.
Each parent is at liberty to attend the children’s school or kindergarten from time to time and to take part in any activities, including parent teacher nights, which are routinely attended by parents.
Both the mother and father encourage and facilitate the children’s communication with the other parent by way of telephone calls and written correspondence in the event that any of the children request to communicate with that parent either in writing, by telephone or in some other electronic form.
Both the father and the mother do all things necessary to:-
(a)forthwith inform the other of any serious accident or illness of the children and in the event of any of the children requiring hospitalisation then each of the parents is entitled to visit such child in hospital;
(b)permit the children to attend with the other parent in the event of a funeral involving a family member or close relative of one of the children’s parents;
(c)inform the other of all medical practitioners with whom the children consult and each of them authorise the other parent be able to make any reasonable inquiries of such medical practitioners attended by the children in respect of matters concerning the health of each of the children;
(d)to authorise, if necessary, the attendance of the other parent at any extracurricular activities undertaken by the children.
The father do all things necessary to authorise the principal of each school attended by the children to forward to the mother copies of each child’s school report and any other school notice pertaining to any of the children together with an order form for each of the children’s school photographs.
That each party be restrained and an injunction issue restraining each of them from denigrating or abusing the other in the presence or hearing of the children or permitting any other person to abuse or denigrate the other in the presence or hearing of the children.
The appointment of the independent children’s lawyer be dismissed.
All outstanding applications be otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BROKEN HILL

ADC 2540 of 2008

MR SCANLAN

Applicant

And

MS DONALD

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally in [B]Broken Hill, so that all the parties effected by them could hear them directly and quickly. Given the complexity of the matter, it is appropriate the reasons be transcribed. Grammatical errors in the transcript have been corrected and changes made to make them more amenable to being read.
These proceedings relate to final parenting arrangements for three children, [X], who was born [in] 2001, [Y], born [in] 2003 and [Z], born [in] 2004.
The parties to the proceedings are the children’s parents, their father, Mr Scanlan and their mother, Ms Donald.
The parties began to live together in [B] in early 2000. Both were in their early twenties at the time. The relationship between them was often filled with problems. It was undoubtedly a violent and unhappy one.
Recently both Ms Donald and Mr Scanlan had been sentenced to terms of immediate imprisonment. Because of issues to do with violence and drug and alcohol use by the parties concerned, it has been earlier ordered that [X], [Y] and [Z] be independently represented in these proceedings.
The children’s representative is Robert Seymour, who is to be regarded as a party to the proceedings.
Ms Donald was released from prison in mid June 2009. She had been earlier sentenced to 24 months imprisonment with a non-parole period of 12 months for the possession and supply of 54 grams of amphetamines and an assault on Ms S, the children’s paternal grandmother.
Ms Donald’s sentence began in July 2008. She will complete her parole in April 2010. On her release, Ms Donald went to live in [L] in the Riverina area of New South Wales. [L] is about 650 kilometres from [B].
Ms Donald’s mother, Ms D, lives at [L]. Ms Donald believes her best chance at getting her life in order is if she lives in [L] where she feels happy and supported. [B] has only unhappy memories for her.
Mr Scanlan was sentenced to imprisonment in June 2007 for a serious assault on a male associate. The sentence was one of 20 months with Mr Scanlan to be released on parole after 10 months and thereafter be subject to supervision, drug and alcohol counselling and anger management. Mr Scanlan was released from prison in April 2008.
The parties finally separated when Mr Scanlan was sent to prison.

Ms Donald accepts that the period following the father’s imprisonment was not a good one for her and the children. She frankly admits that she was using amphetamines heavily and was associating with other drug users. She concedes that she did not adequately parent the children during this period.
Whilst the mother was incapacitated, Ms S played a greater role in caring for the children. Ms Donald accepts that she asked Ms S for some help with her parenting. However, Ms S’s involvement with the children led to conflict between her and Ms Donald.
The assault of Ms S by Ms Donald, for which she was imprisoned, took place on 9 April 2008. It was a serious assault. Since April 2008, whilst Ms Donald was imprisoned, [X], [Y] and [Z] have lived predominantly with their father in [B]. Initially, upon his release from prison,

Mr Scanlan lived with his mother and the children at Ms S’s home at [B].
It is common ground that during the parties’ relationship they lived in [B] and the children have no experience of living anywhere other than [B].
More recently, Mr Scanlan has moved in with his girlfriend Ms L and her 11-year old son, [J]. Ms L also lives in [B]. [X], [Y] and [Z], have moved with their father, although they still see their paternal grandmother regularly.
It is Mr Scanlan’s case that he is well progressed on the road to rehabilitation and he is now the better placed party to parent the children, who are well settled in his care in [B].
He believes that the best outcome for the children is if they continue to live with him in [B], where they have friends and relatives and, so far as [X] and [Y] are concerned, they are well established in school.
In particular, he asserts that the children are very close to their paternal grandmother and it would not be a good idea to move them away from her immediate influence.
Ms Donald wants the children to live predominantly with her at [L]. She accepts that this would represent a significant change for them but she believes they will accommodate it successfully.
Ms Donald’s case rests on a number of propositions:
·She was the children’s primary carer in their early years and nothing can replace a mother’s love.
·She is a better parent than Mr Scanlan.
·She has overcome her drug problems, which in a large part resulted from her poor self-esteem, following from the abuse and violence she suffered at Mr Scanlan’s hands during their relationship.
·Ms Donald believes Mr Scanlan remains a violent and alcoholic person. As such she contends he represents a poor role model for the children and a potential threat to their safety and emotional well being.
·She fears that the relationship between Mr Scanlan and Ms L can only be described as being an untested one, which has the potential to become violent later.
·In addition, Ms Donald asserts that Mr Scanlan and his mother Ms S, are so negatively disposed towards her and her family that they will be incapable of supporting [X], [Y] and [Z] having a proper and meaningful relationship with her and other members of her immediate family.
·Finally, she asserts she is better placed than Mr Scanlan to expose the children to important aspects of their Aboriginal background and culture which she and Mr Scanlan share with the children.
As previously indicated, Ms Donald has no desire to return to live at [B], where she previously lived for the past seven or eight years. As such her case is based on the assumption the children will come and live with her at [L].
At some stage, in the future, if she is feeling more emotionally robust, she will consider moving back to [B], if necessary, so that she can reconnect with the children, if they continue to remain living in the town.
Mr Scanlan and Ms S oppose the children moving to [L]. They are open to a share care arrangement, if Ms Donald does return to live in [B] at some stage in the immediate future.
However, at this stage, they feel it would be too disruptive for the boys to move out of the environment with which they are so familiar, particularly as they think Ms Donald’s rehabilitation is far from complete and she herself remains emotionally and psychologically vulnerable. Ms Donald is currently receiving medical treatment for depression.
As is usual in cases of this complexity, the court ordered that a family report be prepared. This was done by Helen Aitkin, a social worker who met the family in Mildura in late July 2009.
Mrs Aitkin has recommended that the children continue to live with their father in [B], provided that they are able to spend as much time as possible with their mother.
Given the strength of the children’s attachment to both their parents, if Ms Donald returned to live in [B], Mrs Aitkin recommends that an equal time arrangement for the children’s care be considered.
However, Mrs Aitkin considered that the children, because of past omissions in their parenting, were to be regarded as vulnerable children. As such she thought that they needed continuity in arrangements for their care, which led her to favour the children remaining in [B] with their father, if Ms Donald continued to live in [L].
Mrs Aitkin also thought that Ms S was very close to the children and provided an important safety net for them, which the court should not easily dispense with.
At this stage, Mrs Aitkin was impressed with the efforts at rehabilitation which both parties had made. As such, she considered both had much to offer the children. In her report Mrs Aitkin said as follows:
“The children have always attended [B] Primary School and have always lived in [B]. They have established friends and extended family relationships and also get along with the teachers at the school. They appear settled and happy and the writer had no reason to question Mr Scanlan’s parenting capacity. While there was also no reason to question Ms Donald’s parenting capacity, relocating the children away from extended family and a school community where they have friends and play sport to a place where they are not as well connected to the community and effectively do not have friends, would be a significant adjustment for them.”
Mr Seymour has briefed a barrister to appear on his behalf in this case. She is Ms du Barry. Ms du Barry supports Mrs Aitkin’s recommendations. Ms du Barry proposes that the children continue to live with their father in [B], spend four weeks at the end of year school holiday and much of the shorter school holidays each year with their mother.
Ms du Barry would also be supportive of some form of share care arrangement, in the event that Ms Donald returns to live in [B]. However, she would be concerned that such an arrangement not be unduly open-ended.
Mr Scanlan accepts these recommendations, Ms Donald does not. These proceedings are deigned to resolve this dispute between the parties.
Ms Donald is due to leave [B] shortly. She has acted on her own behalf in these proceedings, which have generated considerable emotion for all concerned, particularly her.
In these circumstances, it is important the parties and children know the result of the court case as soon as possible. For that reason I am delivering these reasons for judgment orally, shortly following the final hearing.
Regrettably, this will be a somewhat time consuming exercise. Necessarily, due to the complexity of the proceedings, the reasons for judgment must be lengthy. I apologise for the burden listening to these reasons for judgment will place on each of the parties concerned.

The evidence

The parties themselves gave evidence in the case. Each relied on a professionally drawn affidavit. In addition, the paternal grandmother, Ms S, and the maternal grandmother, Ms D, gave evidence. The only other witness was Mrs Aitkin herself.
At times, both Mr Scanlan and Ms Donald were painfully honest witnesses, particularly in terms of setting out their past failings as parents and spouses to one another.
Mr Scanlan, to his credit, acknowledged issues to deal with significant and regular binge drinking and problems he had experienced with managing anger and impulse control.
He admitted being verbally abusive of both Ms Donald and his own mother. However, he denied ever having physically assaulted

Ms Donald.
The police were frequent visitors to the parties’ home, during their relationship. It seems to be the case that they were largely called by neighbours, who were alarmed and concerned by the noise and conflict coming from the parties’ home.
Mr Scanlan admitted his level of intoxication was such that he could not always recall what his behaviour had been.
At least three apprehended violence orders were taken out on behalf of Ms Donald against Mr Scanlan. Ms Donald now asserts that she lacked sufficient insight, at the time, into the detrimental consequences for her and the children of Mr Scanlan’s behaviour. I accept that this is so.
As such, she did not follow up with police in respect of laying charges against Mr Scanlan but was able to be talked out of such a course both by the father and his mother, Ms S.
I believe that Mr Scanlan is likely to have underestimated the seriousness of his behaviour. He asserts there was a lot of verbal abuse from both sides and a lot of arguments about the parties’ mutual amphetamine use.
I have no doubt his behaviour was violent. I doubt his evidence that he has never physically struck the mother but would leave the home before arguments could escalate. I think this is likely to be a rationalisation on his part, particularly given his admission that his level of intoxication was at times so great that he cannot remember what happened.
Ms Donald accepts that she herself had issues to do with drug and alcohol abuse, during the parties’ relationship. In addition, she does not deny that she herself assaulted Mr Scanlan physically. In her words “the only way for me to release my anger [for Mr Scanlan] was to hit him.” Again, this seems to have, at the very least, the flavour of some level of rationalisation.
The parties’ relationship was one marked by many areas of significant disadvantage. They both left school early with few, if any, qualifications. Neither was in regular employment. Both had significant substance abuse problems.
I accept, however, that both parties were involved in parenting the three children but it seems clear to me that, from time to time, their parenting must have been severely compromised.
I find that the parties were locked together in, at times, a deeply, unhappy, dysfunctional and mutually abusive relationship. At this point, it is difficult, if not impossible, to categorise accurately and to what degree, how each of them was either a victim and/or protagonist of this violence or whether they were each a combination of both, at different times.

Both were using cannabis and amphetamine in an intravenous form at the time. They argued about the consequence of this behaviour for the children. It seems clear that both were capable of using strong profanities against the other.
The mother describes the father as being controlling of her, particularly in terms of accusing her of being unfaithful to him. The father asserts that the mother was capable of being extremely provocative to him in the conduct of her personal life. Ms Donald concedes that she called Mr Scanlan a “mother fucker”.
The violence of which Ms Donald complains is serious. At one time it involved her being stabbed with a knife, particularly in 2001.
Mr Scanlan concedes an injury with a knife to Ms Donald at the time, but asserts the injury was accidental. I have not been provided with any independent or objective evidence in support of the mother’s allegations.
At this juncture, each of the parties wishes to portray the other as being the more seriously damaged and having the more antisocial personality.
A significant flavour of the mother’s case is that it is more likely than not that she was the victim of family violence because of her sex and because Mr Scanlan is a big man.
On the evidence before me, I am unable to reach this conclusion. I have also great difficulty in accepting that Mr Scanlan would always walk away before violence between the parties could escalate and he was, more often than not, the victim of the mother’s violent and provocative behaviour.
In my estimation there is much to be critical in both parties’ behaviour and conduct. However, the fact remains that [X], [Y] and [Z] were loved and wanted children, whose needs were more or less met by the parties, apart from times of extreme crisis in their parent’s relationship. The older boys did attend school regularly and did well there.
Poignantly, Ms Donald wished me to see all of the children’s merit certificates from school and the clippings she had collected from the local paper about them. I accept that there were also happy times in the parties’ relationship with the children who were, as I say, much loved and wanted children.
2007 and 2008 were disastrous years for the parties and so far as [X], [Y] and [Z] were concerned.
Firstly, and most obviously, the children had to accommodate the incarceration of their father. The assault he committed was a serious one, as is evident from the length of the sentence he received.
I am also satisfied that the victim of the assault was a drug user and criminal associate of the father. At the time it seems likely to me that both parties were immersed in the drug culture and criminal milieu of [B].
At the time of the father’s incarceration, the parties and the children were living at Property B. Ms S is the most reliable witness as to what happened from June 2007 onwards.
It is her evidence that, in July 2007, she found the mother passed out on the floor, as a result of drug intoxication. She found the Property B property to be dirty and without adequate food for the children. She was concerned about drug-using associates of the mother who were frequently at the premises. She alerted DOCS about her concerns.
Thereafter, I accept that she performed an essential role as a safety net for the children. [X], in particular, would confided in her and seek her out when he was worried about his mother’s behaviour. Ms S made sure the children were fed and clothed. They frequently stayed overnight at her home.
Ms S is a plain speaker. She is not currently well disposed towards

Ms Donald. However, I do not think her evidence is motivated by either malice for Ms Donald or her own self interest. In addition, I do not think her assessment of Ms Donald’s parenting, during this period, can be described as an hysterical over-reaction or exaggeration. I accept her evidence.
To her credit, Ms Donald acknowledges that she neglected the kids during this period and was emotionally absent from them. In her words, she had an emotional breakdown and wanted to be numb. She found this numbness in drug use.
In September 2007, Ms Donald asked Ms S to collect the children. At the time, Ms Donald complained about being significantly in debt and having “too much speed in [her] body”.
In October 2007, the mother was imprisoned for about a week. I presume she was initially refused bail. The children came into Ms S’s care. DOCS were informed but provided no assistance to her, in respect of the event, regarding it as a private matter.
Ms S continued to be concerned that, whilst with their mother, the children were exposed to drug and alcohol use and, in particular, were exposed to discarded syringes, people using bongs and other drug paraphernalia and quantities of drugs themselves, particularly marijuana. All these things being regularly present in the mother’s home.
Although in some ways an assertive person, Ms S is not sophisticated in dealing with the bureaucracy. I accept she felt powerless and let down by those in authority, particularly DOCS. She did not know what to do and to whom to turn. In desperation she wrote to the Commonwealth Ombudsman.
In January 2008, she wrote as follows:
“The children’s father, my son, is in gaol at the moment and they are with their mother who is not looking after them. This is due to her drug dependency and drug dealing and her many illegal activities some of which she has been charged and court cases pending. Many of these activities are endangering the children’s health and mental state. Many of these illegal activities and child neglect have been reported by a number of people to the police and DOCS. Nothing has eventuated and the situation continues. The children are extremely stressed and unhappy and don’t want to remain at home. I am at my wit’s end with worry as I am the only safe haven for the children but feel helpless in many ways as many of my reportings to the police through Crime Stoppers and DOCS have come to nothing.”
I accept that the letter which Ms S wrote represents her feelings at the time and is a true representation of the difficulties which the children confronted.
Relations between Ms Donald and Ms S were very poor, in the period prior to Mr Scanlan’s release from prison, particularly as he had learned of a possibility that Ms Donald might leave [B] with [X], [Y] and [Z].
It is also the case that [X] and [Y] missed in excess of three weeks school during the first term of 2008. Again, in my view, it is indicative of Ms Donald’s difficulties and compromised level of parenting that the children missed such a significant period of school.
This is the background to what happened between Ms Donald and

Ms S on 9 April 2008, which was a few days after Mr Scanlan’s release from prison. He had also started to make inquiries about instigating legal proceedings in respect to the arrangements for the care of the three children following his release.
On 9 April, Ms S attended at Ms Donald’s home to collect the children, so that they could spend time with their father. This resulted in an ugly altercation between the two women.
Clearly it was a volatile situation, inflamed by Ms Donald stating her intention of taking the children to [M]. Strong words were exchanged. The two women yelling at each other. Regrettably, the children were present.
The dispute escalated with Ms Donald punching Ms S a number of times and using racial abuse against her. Ms S is not a person of Aboriginal background.
The children took refuge in Ms S’s car and left the premises with her. The incident was reported to the police. At the time Ms Donald was on bail for other offences.
Since 19 April 2008, Ms Donald has been subject to an apprehended violence order preventing her from approaching Ms S. The AVO includes the father and it is for a period of two years.
After April 2008, the mother had limited interaction with the three children. Relations between the adults concerned reached a new low and, at the time, they lacked the capacity to move on from the confrontation for the sake of the children.
In my view, there is some substance to Ms Donald’s criticism that she felt the children were being wilfully withheld from her, as Mr Scanlan and his mother jockeyed for advantage over her. I suspect that the children were used to this effect.
On the other hand, the children must have been distressed at the assault on their grandmother, which had happened before their eyes. Neither side’s behaviour is beyond reproach during the period as they jockeyed to have the upper hand over the other.
This impasse, in time, led to another unfortunate confrontation between the father and mother, at [Y] and [X]’s school, on 18 June 2008.

Mr Scanlan was summonsed to the school because Ms Donald had arrived and wished to remove the children with her.
For reasons, not entirely clear to me, [X] was present in the principal’s office, whilst the parties argued with one another. The father has deposed that [X] was crying and hanging onto his, the father’s legs, whilst making it clear that he did not want to go with his mother. I accept that [X] was very upset. The police were called to the scene.
A short time later Ms Donald spoke to [Y] outside. She made it clear she was going to leave the school premises with [Y] and she did so. The police were not inclined to intervene.
Too a very large extent, each parties’ behaviour was as bad as the others. No doubt Ms Donald felt justified to take things into her own hands because Mr Scanlan had made no proposal for her to see the children and she felt inclined to pay him back in the same coin, but I regard her behaviour as being poor parenting for the following reasons.
Firstly, she created an unpleasant scene in front of the children. Secondly, she separated [Y] from his two siblings. Thirdly, at the time, she knew was due to face court shortly and there was at least the possibility she would be incarcerated.
Her behaviour confirms my impression that the mother is at times emotionally tempestuous and has a propensity to put her own emotional needs before those of the children.
In any event, prior to Ms Donald’s appearance before the criminal court in [B], she took [Y] with her to [L], where she stayed with her mother. Again, it is clear to me that this action demonstrates her propensity to take things into her own hands.
On 17 July 2008, Ms Donald received her sentence of imprisonment. On 26 July 2008, following the granting of a recovery order by Simpson FM, Mr Scanlan travelled to [L] to remove [Y] from Ms D. The three children have been living predominantly with him in [B] in the period since.
Ms Donald served her sentence of imprisonment at [B] and [W] Prisons. She was unable to see the children, whilst she was at [W], because of the distance involved. At best she was only able to see her children once per month, whilst she was imprisoned in [B].
She complains that Mr Scanlan was deliberately cruel to her in withholding the children from her, whilst she was in [B] Prison. It seems to me that he could certainly have been more proactive in taking the children to see their mother.
Whilst Mr Scanlan had been in prison, his mother, Ms S, was active in ensuring the children maintained their relationship with their father. Ms Donald herself did not attend the prison because she had been banned from attending there because she had been caught by the authorities trying to throw drugs over the perimeter fence.
As is obvious from these reasons of judgment, the prior behaviour of each of the parents is far from being beyond reproach. Each of them has fairly recently received a significant gaol term arising from serious criminal behaviour.
In this context, I must make some assessment of how far along the path of rehabilitation each of them has progressed and what are the prospects for each of them of being fully rehabilitated.
There is little independent and objective evidence in respect of this issue. For obviously reasons, each party is likely to over estimate his or her progress in this regard and lack any significant capacity to be self-critical.
In my estimation, both parties remain liable to lapse in their rehabilitation. Mr Scanlan remains out of the work force, although he has plans to seek some labouring work in future. I accept he no longer uses illicit drugs, but he continues to use alcohol from time to time.
He categorises his alcohol use as social only. I accept he now only drinks mid strength beer. It is his case that, at most, he only drinks six cans in a single session. However, I note that it is a truth universally observed that people under rather than over estimate their level of alcohol consumption.
In this context, it is highly concerning that Mr Scanlan had recently lost his driver’s licence, as a result of being apprehended while speeding and then being discovered to have some level of alcohol in his system, whilst the condition of his provisional licence is that he is prohibited from driving with any blood alcohol content whatsoever.
In his favour is the fact that the alcohol level was below .05 per cent and his consumption related to a social occasion on the previous evening, during which the children were not present.
In addition, it is also highly significant that he called the police to his home as a result of a dispute between him and Ms L relating to an issue pertaining to the children.
In this context, I am concerned that I have had no opportunity to assess Ms L’s level of insight, into the nature of her relationship with

Mr Scanlan and, as a consequence, am unable to assess the chances of their relationship persisting.
On any view, the relationship between Mr Scanlan and Ms L is not a longstanding one. It seems to me to be likely to be one which is subject to some pressures from time to time, particularly those which will arise as [J] adjusts to living with [X], [Y] and [Z] and vice versa.
In this regard Ms S can hardly be regarded as a dispassionate observer. However, where her grandchildren are concerned, she cannot be regarded as completely lacking in objectivity. I accept her evidence that she has been impressed with her son’s progress, as a parent, both before and after he and the children left her home.
I was also very impressed with Mr Scanlan’s account of his progress and completion of the domestic violence course. My impression of

Mr Scanlan was that he gained a genuine level of insight into the consequences of his prior behaviour. I did not think he was merely mouthing self-serving platitudes in this regard.
Overall I find that Mr Scanlan has made real progress in his rehabilitation and is now a quieter and more resolved person, who has taken steps to change his life for the better, largely for the sake of his children
The court presentation of the parties was markedly different. Although moved to quiet tears at times, Mr Scanlan was the calmer and more reflective parent.
He had, of course, the advantage of being represented legally and having the family report and independent children’s lawyer advocating in his favour.
Ms Donald had none of these things. She had to advocate her own case, which she did determinedly and passionately. However, she seemed to me to be a very emotional person. She lost her composure on several occasions during the case.
In this context, I am concerned about her inability to hide her obvious emotional distress, about the current arrangements for the children, from them. As such, I believe I must treat with caution her account of the older children strongly indicating to her their desire to give life in [L] a try.
I am concerned this may be wishful thinking on her part. It is also highly possible the children may be trying to mollify their mother’s distress, by telling her what she wants to hear.
There exists very little evidence as to how Ms Donald is currently travelling emotionally. She appeared to me to be very vulnerable in this regard. In this respect, the letter from Ms J, Ms Donald’s drug and alcohol case worker, exhibit 1, was not particularly helpful.
It is, however, the position that Ms Donald has had alcohol and drug counselling, since her release from prison on parole. I also accept that she is currently drug and alcohol free and this is to her very great credit. However, she continues to be depressed. This is hardly surprising given how recently she has been released from prison and her separation from the children concerned.
In this context, I am concerned that Ms Donald may see herself self professed goal of day to day caring for the children being returned to her as the panacea for all her difficulties.
On the one hand it is highly insightful that Ms Donald accepts that a return for her to [B], with its past connotations and associates, is not likely to be helpful to her rehabilitation.
However, on the other hand, in my assessment, it is not particularly insightful so, far as the welfare of [X], [Y] and [Z], is concerned for her to advocate a change in the children’s living arrangements, so that her rehabilitation can be fostered.
I regard [X], [Y] and [Z] as vulnerable children, particularly as a result of the upheaval which they had to accommodate in 2007, 2008 and 2009.
It seems to me to be highly likely that, in the event the children do move to [L], their behaviour will be challenging, to say the least. I am concerned that Ms Donald has turned her mind very little to this issue and perhaps more importantly has little capacity to assess her own emotional robustness to deal with such challenges.
Overall, my assessment is Ms Donald’s rehabilitation is not as advanced as is Mr Scanlan’s. In this regard, I can well understand why Ms Donald feels that she is being prejudiced by the fact that it was she who was imprisoned second of the two parents and while she was incarcerated Mr Scanlan has had the opportunity to bring about a parental status quo in his favour.
It is also Ms Donald’s perception, which has a strong element of truth in it, that it was in large part as a result of her exposure to Mr Scanlan’s antisocial behaviour that brought about the unravelling of her own life.
This may be so, but my responsibility is not to be fair to the parents, rather it is to focus on how the interests of [X], [Y] and [Z] may be best served. In this regard I am concerned that it is likely to place

Ms Donald’s rehabilitation under some pressure if the children come and live with her in [L].
Given the circumstances of this case, I am unimpressed with any argument that the placement of the children with Ms Donald will aid or accelerate her rehabilitation. That is not a proper function for children. I am also cautious of such statements that “nothing can replace a mother’s love” although I can understand from where such statements emanate and I do not doubt their sincerity.
Ms Donald deposes that she is currently in a relationship with Mr S, who is originally from [B]. The two do not live together, as Mr S currently lives in North Western Victoria. I do not know what Mr S and Ms Donald are planning so far as their relationship is concerned in the long term.
Ms Donald was a great enthusiast for the amenities and opportunities available to her at [L]. I accept it is a well-resourced country town, which most likely would offer similar educational opportunities for the children to those which exist for them in [B].
Ms D’s home offers suitable accommodation for the children. I accept that Ms Donald feels she gains emotional support from her mother, two sisters and brother who also currently live in [L].
Following Ms Donald’s release from prison, arrangements for her to spend time with the children have been problematic. Initially, Mr Scanlan was only prepared to consider the mother spending supervised time with the children. The supervision to be provided by Ms D.
He justified this position because of his fear that the mother may decamp with the children concerned. I accept that he had some level of apprehension but I am concerned that he may also have been motivated by some element of spite for the mother.

However, a period of holiday time arranged for the children, following court order, in the September-October school holidays, seems to have progressed without incident.
To her great credit, Ms Donald has said the children were delivered to her in September in a happy and healthy state and she knows of no obvious deficits in the father’s care of the children. Both parties acknowledge that the other loves the children concerned very much indeed.
For obvious reasons Ms Donald remains highly suspicious of

Mr Scanlan and he of her. In this context, arrangements for the children to speak with their mother regularly on the telephone have also proved problematic.
This is a common phenomenon in families, where there is a high degree of conflict and suspicion. I suspect Mr Scanlan could do better in terms of facilitating telephone communications. He, after all, holds all the cards in this regard. However, I also accept his evidence that things have been easier since he had a landline telephone installed at his home.
Ms Donald is suspicious about the nature of Mr Scanlan’s relationship with Ms L and dubious about Mr Scanlan’s self professed accounts of his current level of alcohol use. I share those concerns.
However, apart from her suspicions, Ms Donald can point to little concrete evidence to support her fears. Given the acrimony between the parties, which is unlikely to abate, it is doubtful that her suspicions will ever be fully assuaged.
Ms D was a pleasant witness. She is a good influence in her daughter and the children’s lives. She is very loyal to her daughter, deposing that she, Ms Donald, has changed a lot since she left prison and, as a result, has become a much more caring person.
She does not have a good view of Mr Scanlan. In 2004, I accept she was exposed to a significant episode of family violence, at

Mr Scanlan’s hands, when he was drunk and raging, while brandishing a large blade which was almost certainly stolen.
However, Ms D concedes that she has not been a frequent visitor in the parties’ former family home, although it has been her long held impression that all was not as it should be there.
As a result, she concedes that her relationship with [X], [Y] and [Z] is not as close as she would wish. On past occasions, orders have been made, particularly whilst Ms Donald was in prison, for Ms D to have regular telephone calls with the children.
Again, this arrangement has proved to be problematic and recently she has not been telephoning the children. She complains of a lack of courtesy and a level of coldness in her dealings with Mr Scanlan and Ms S. Her perception is that they do not think she is good enough to be involved with the children.
Certainly there is a deep rupture between the paternal and maternal aspects of the children’s family. This does not bode well for them. Each side blames the other for it, and neither side is prepared to do much to repair it. The parties and those who are associated with each of them, must do better in this regard.
Ms D’s family comes from the [O] area of Western New South Wales. She is a respected Aboriginal Elder from this area and has been involved in land claims relating to the area and has also served on the boards of a number of community organisations. Ms D is a member of the [K] people, who currently and traditionally occupy the area around the Darling River.
On his paternal side, Mr Scanlan is also a descendent of the [K] people. His mother has a European heritage. The [K] people have association with the [B] area but not the area around [L], as I understand things.
Ms D has plans to returns to [O], at some time in the future. She wishes to finalise a native title claim in which she is involved. Ms D has knowledge of bush tucker and traditional medicines in the [O] area. She also knows many of the elders and has knowledge of the language spoken there.
The mother is also interested in such things and wants this knowledge to be passed on to the children. It is her case that Mr Scanlan has lost touch with his lands and traditions.
Ms D is involved in caring for five of her grandchildren, who range in age from 1 to 12 years. In her words, “I have a lot of things happening in my life. I can't live Ms Donald’s life for her.”
Accordingly, it may be the case that Mrs D Senior is not able to provide as much support to the mother in future, as she does currently. I agree that it is important for [X], [Y] and [Z] to know and be involved with their maternal grandmother and cousins.

The family report

Mrs Aitkin has a considerable advantage over me in this case. She was able to see and hear the children directly and see them interact with each of their parents. Accordingly, she was able to form an immediate impression of what sort of children they are and how they are currently faring.
All family reports must be considered “a snapshot” in time, which is taken in somewhat artificial and stilted circumstances. However, notwithstanding these limitations, I found Mrs Aitkin’s report of evidence to be thorough and well considered.
Mrs Aitkin found [X], [Y] and [Z] to be delightful kids, who were travelling well at present. She was concerned that [Z]’s intellectual development was a little behind the norm at present.
She had spoken to teachers at [X] and [Y]’s school and had been advised that the two boys were well settled in their school and its community. Both of them are described as having a number of friends in the school.
However, notwithstanding these positive aspects in their lives, Mrs Aitkin considered the three children to be vulnerable children. She considered that they had almost certainly been exposed to family violence and neglect in the past and the parenting which had been provided to them had almost certainly been compromised in the past.
As a result, she considered that they each had a need for a great deal of stability in their lives. This stability was currently being provided through friends and relatives in the community in the [B] area, where they had always lived.
In particular, Mrs Aitkin considered that the children had a very great attachment to Ms S, in whom the older children had confided in the past and who had provided each of them with a significant level of nurture and care, particularly whilst their mother’s parenting was compromised.
Mrs Aitkin conceded there remained question marks over both parent’s rehabilitation, although she was impressed that both had made good progress in this regard. Like me, Mrs Aitkin considered Ms Donald had not fully considered how she would be likely to cope with three children, who would almost certainly be missing their father and friends, if they moved to live in [L] and most probably would experience significant adjustment difficulties.
In all these circumstances, Mrs Aitkin cautioned against any significant changes in the children’s lives. In particular she considered Ms S to be a positive influence in the children’s lives and she would be concerned about [X], [Y] and [Z] being moved away from this immediate form of safety net. I agree with this assessment.
Overall, Mrs Aitkin considered that, as a consequence of their past disrupted care, all three children were at risk of having future emotional problems, as they moved into adolescence which, in turn, raised implications for their future overall well being, such as satisfactory progress at school. Again, these factors caused her to be cautious about advocating any major change for the children concerned.
In this regard, she considered a move to [L], no matter how good its facilities and no matter the degree of love provided by Ms Donald, would be a very major change for them to accommodate and as such she did not favour it.
Mrs Aitkin was concerned at the nature of the parties’ relationship with one another, which she described as “very conflictual”. She considered this relationship was also likely to place the children under pressure and lead to some potential emotional trauma for them.
She was also concerned that this level of conflict placed the children in a situation where they were likely to feel responsible for conveying information, about their care, between their parents.
In my assessment, Ms Donald is likely to be a person who has difficulty in shielding the children from her own emotional distress. Clearly she is highly distressed at the prospect of the children remaining in [B].
[X] and [Y] are aware of this distress. In her evidence Ms Donald stated that she had spoken with the older children, whom she said were now very keen to give life in [L] a try.
Mrs Aitkin was concerned that there was a significant possibility that the children would take emotional responsibility for their mother’s unhappiness and were telling her what she wanted to hear in an attempt to alleviate this unhappiness.
On interview, [X] said he was happy living with his father but wanted to see his mother more. He had some past negative associations of his mother, remembering being scared when he was left by himself.
He was clear he did not want to change schools. He described being upset and stressed by his parents arguing. In her report, Mrs Aitkin wrote as follows:
“[X] did not want to say where he wanted to live. The attachment to both of his parents appears strong and he also displays a very strong attachment to his paternal grandmother, Ms S. [X] also includes his father’s extended family who live in [B] and whom he sees on a regular basis as part of his family.”
[Y], aged 6, stated an immediate preference to live with his mother. However, he also said he had lots of friends at school in [B]. In the context of this case, Mrs Aitkin was cautious about attaching too much weight to [Y]’s apparent preference but she did concede that it was a significant indication on his part. She wrote as follows:
“[Y] was able to demonstrate his family, which included his mother and father with his brothers but also included his paternal grandmother, Ms S. [Y] stated that he would like to live with his mother but would also like to spend time with his father as well. [Y] reports that if he had to move that he would miss his friends and he would like to be able to live with his mother and father together. [Y] also reports that he does not like talking on the telephone and wishes that he did not have to do so.”
Mrs Aitkin was satisfied, after having administered some psychometric testing, that [Y] is likely to be equally attached to both his parents.
[Z] reported missing his mother and to have liked living with her. However, Mrs Aitkin noted [Z]’s age as being around five years of age. The implication being that he was very immature and no great weight should be given to his apparent preference.
Both parents were observed to interact spontaneously and appropriately with the children and both were found to be loving and attentive to them. As such, Mrs Aitkin considered the children had a very close bond to each of their parents who had much to offer them.
Mrs Aitkin did not consider the children were likely to have a more significant bond with their mother because she was likely to have provided more nurture in their earlier years and because of her sex and maternal disposition.
Importantly, Mrs Aitkin considered that the children would be able to maintain their attachment with their mother through regularly spending school holiday periods with their mother, although this was obviously not the optimal outcome. No recent developments caused Mrs Aitkin to change her initial recommendations of August 2009, which I accept.

The legal principles to be applied

The service of [X], [Y] and [Z]’s best interests is the most important consideration in this case [Family Law Act s.60CA][1].
[1] Hereafter each reference in [ ] is to the Family Law Act 1975
The aims and principles of the part of the Family Law Act [s.60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concern from physical or psychological harm from being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people are most usually the parents of any child concerned but also include other relatives, specifically grandparents [s.60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order, both at the interim and final stage, is to consider whether the parents concerned should have equal shared parental responsibility for their child [s.61DA].
In this case, the parties and the independent children’s lawyer agree that the presumption should be applied to future arrangements for [X], [Y] and [Z]’s parenting.
By application of the law, if the presumption applies, the court is required to consider, firstly, whether the children concerned should live with their parents for equal periods of time, provided this outcome is both likely to be in the children’s best interests and reasonable practicable.
If the court rejects equal time, it is then required to consider the children living with each of their parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the children’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; as well as their daily routine and special occasions; - so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly, the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly, the arrangements are likely to be reasonably practical to put into operation.
In this case, for obvious practical reasons, arising from the mother’s location in [L] and the father’s location in [B], it is not possible for the children to live with each of their parents, either equally or for substantial and significant periods of time unless one of them moves.
In considering the children’s best interests I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider, primary considerations and additional considerations.
There are two primary considerations. Firstly, the need to ensure the children concerned have a meaningful relationship with both their parents. Secondly, the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect including family violence.
The additional considerations are more numerous [s.60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principals of the Family Law legislation, in determining the outcome of the particular case, one or more of the additional considerations may come to the fore.
In assessing the various considerations arising under section 60CC(2) and (3), the court is required to assess the degree of participation of the parents concerned in the lives of their children both for and after separation.
This assessment includes how much time and communication the parents have had with the children; the degree of their involvement and long-term decision-making; and their fulfilment of financial obligations towards the children, both before and after separation [s.60CC(4) & (4A)].
In addition the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives. These considerations emphasise the benefit for the children of effective co-parenting and the obligations on parents to facilitate it.
In particular, [section 60CC(4)(a)] the court is directed that it must have regard to events which have occurred post separation in respect of how a parent has either facilitated or failed to facilitate the involvement of the other in spending time or communicating with any child concerned. These considerations are relevant to whether a parent has or has not displayed an appropriate attitude to the responsibilities of being a parent [section 60CC(3)(i)].
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for any child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on either of the child’s parents, are not appropriate psychological role models for children.[2]
[2] See In the Marriage of Patsalou (1994) 18 Fam LR 426
It is now generally recognised that family violence is prevalent in all social settings and walks of life and represents a grave threat to the welfare of children. It is also well recognised that family violence is a grave social evil in many Aboriginal communities. It is never acceptable for a man to strike or abuse a woman, particularly when they are in a relationship with one another.
Family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation such as a relationship breakdown and is instantly regretted or it can be more symptomatic and deliberate, arising from the clear power imbalance between the parties concerned.[3] Obviously the latter behaviour is the more damaging so far as children are concerned.
[3] See JG & BG (1994) 19 Fam LR 255 at 261
The fundamental task for the court is to assess prospective dangers for any child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failures, particularly if that failure arises against a background of difficult circumstances or indeed as a result of provocation or incitement.

Applying the section 60CC factors to the evidence

a) The primary considerations

The children concerned in this case have been exposed to significant and endemic family violence. Both parents have been the proponents of this violence but the father’s role, because of his self-admitted alcoholism, is likely to have been more significant.
The long-term consequences of this exposure for the children cannot be known. At present none of the children are fearful of either of their parents and each of the children’s parental relationships remains intact and viable. The children obviously love both their parents.
The major issue is whether, in future, one of the parties, particularly

Mr Scanlan, will use violence in an attempt to resolve an argument or to cow or humiliate a partner or relative.
Such behaviour would represent a damaging role model for children of the ages of [X], [Y] and [Z], particularly as they move into adolescence. I must also not overlook the grave threat which family violence represents to the viability of indigenous communities throughout Australia, both in urban, rural and remote settings.
This issue troubles me greatly. Mr Scanlan has many question marks hanging over him. He has a significant criminal record for violence, as does the mother. His past behaviour indicates that he is vulnerable to both alcohol abuse and to recourse to violence.
However, I was impressed with his current demeanour and his level of insight into the dangers of his past behaviour. It is noteworthy he was one of only two participants to complete his anger management course and he has been invited back to talk to future participants. This shows he is capable of moderating his behaviour.

It is also the case that Ms Donald has exposed the children to family violence, particularly when she assaulted the children’s grandmother in their direct presence.
It is also my finding that she has neglected the children to a significant degree, whilst she was in the grip of her serious drug addiction.
To my mind it is a significant factor that [X], the oldest child, has memories of being left to fend for himself and being frightened as a result, which he recounted to Mrs Aitkin.This demonstrates that he is a child who is bearing some emotional scars.
It is to both parties’ credit that they have turned their lives around but this is not a case where one parent clearly presents as the preferred option for the children. Both Mr Scanlan and Ms Donald have previously failed as parents to a marked degree.
At this stage, in all these circumstances, I have come to the conclusion that Mr Scanlan’s past violence behaviour, in the family setting, does not automatically preclude him from being the primary residence providing parents for these children.
[X], [Y] and [Z] love their mother. They remember living with her and miss her company. They want to spend more time with her. Mrs Aitkin recommends that the children spend as much time as possible with their mother. This indicates that the children have, to a large degree, overcome what occurred to them in 2007 and 2008. It seems that they are fairly robust children.
For legitimate and understandable reasons, Ms Donald has chosen to live in [L]. This decision has implications for the level of meaning the children will have in their relationship with each of their parents.
Obviously, because of the distance involved, [X], [Y] and [Z] will not have the most perfect relationship with their mother if they continue to live in [B] and she in [L].
However, the applicable legislation does not aspire to the optimal results in every case. This would be unrealistic and unduly utopian. [X], [Y] and [Z]’s relationship with their mother is a live and loving one. I accept Mrs Aitkin’s evidence that it can remain viable and meaningful through the children spending regular holidays with their mother.

b) Additional considerations

a) The children’s views

[X], at aged eight, is torn with the prospect, as he perceives it, of having to choose between his parents. It would be unfair of the parties to expect him to make such a decision on his own in this case, given his age.
[Y] is six and a half. He is far from mature. There is the prospect that he has been strongly influenced by his mother’s obvious emotional distress. [Z] is barely five. Given the lack of maturity and the high level of conflict between the parties the children’s views alone cannot be a determinative factor in this case.

b) The nature of the children’s relationship with each of their parents and significant others.

The children have a close and loving relationship with each of their parents. Importantly, they are also closely bonded to their paternal grandmother, Ms S. They are not so closely bonded to their maternal grandmother, Ms D.
The bond with Ms S was strengthened when the parenting of both the father and mother was severely compromised. I accept it is a bond which needs to be maintained, given the children’s topsy-turvy lives over the past few years. This is a factor which strongly militates in favour of the children remaining in their father’s care in the [B] area.

c) The willingness and ability of the parties to encourage a close and continual relationship between the children and their other parent.

Ms Donald complains that the farther and his family are unwilling to ensure that [X], [Y] and [Z] have a proper level of relationship with her and her family. In my view there is significant substance to her complaint.
As long as the unacceptably high level of conflict remains between the parties, this will be a problematic case. In this regard, I am not convinced that Ms Donald will behave better than Mr Scanlan, if the children are placed in her care. There is no love lost either way.
The best outcome may be if Ms Donald returns to [B] to live. She is equivocal about this prospect but my current feeling is that she is unlikely to do so in the short to medium term.
An equal time arrangement is likely to rest on an uneasy base and it will result in a situation of parallel parenting to use the current psychological jargon but it would ensure some measure of equality in terms of each parties’ interaction with the children.
In the turmoil which resulted following the parties’ separation, each of the parties and those associated with them, has not behaved perfectly. They have jockeyed with one another for advantage over the other parent concerned. The children have been held as metaphorical hostage and each party has utilised some degree of self-help. This is to neither parties’ credit.

d) The likely effect of any changes in the children’s circumstances.

From the point of view of Mr Scanlan, the independent children’s lawyer and Mrs Aitkin, this is one of the more significant considerations in this case. I agree.
It is my finding that [X], [Y] and [Z], although thankfully robust children, remain emotionally vulnerable because of their past compromised parenting. As such great care needs to be taken before there is any radical change in arrangements for their care.
I view the mother’s proposal to move the children to [L] as radical, particularly as all evidence indicates they are well settled and happy in [B].
[X] and [Y] are likely to draw a sense of personal identity and security from interacting with their friends and relatives, particularly Ms S, in [B]. These are children who are likely to need continuity.
I accept [L] has similar schools to [B] and excellent sporting facilities. That is not the point. [X], [Y] and [Z] are likely to thrive on a diet of the familiar. They need routine.
For example, [X] plays cricket. He stays overnight with a friend on Friday before the game on Saturday. [Y] has maths coaching regularly. All three boys see their grandma on most weekends. They live and operate in a comforting and familiar matrix of routine. In this routine, they are currently doing well by all reports.
These factors militate against the court making any significant changes in their care arrangements. Against this background, to move the children to [L] would represent an experiment. It cannot be known how well they will adjust to such a move, particularly if their mother is psychologically and emotionally fragile.
In my view, based on the clear recommendations of Mrs Aitkin, it would be an unwarranted and imprudent experiment so far as the children’s best interests are concerned, to move them out of [B] at this juncture.

e) The practical difficulty and expense of the children spending time with each of their parents.

This is a difficult case, which presents no obvious or easy solution, particularly whilst the parties live far apart and remain under resourced financially.
It is 633 kilometres between [B] and [L] or a drive of around eight hours. On any view, it is a long drive. It will be difficult for the parties to afford the cost of the fuel. Currently each of them relies on relatives to assist with the driving.
I have no solutions to these problems, other than the parties share the driving and meet approximately halfway. However, in my view the distance is not so great that these practical problems are insuperable.

f) The capacity of the parties to provide for the children’s emotional and educational needs.

I am satisfied that Mr Scanlan is currently ensuring [X] and [Y] attend school regularly. When she was in the grip of her drug addiction,

Ms Donald was neglectful of the children’s education. However, from her point of view, this was an aberration and she was and is likely to be vitally interested in the children’s education. I accept this is so.
I do not doubt, for a moment, the love each parent has for [X], [Y] and [Z]. They are much loved children. In this sense, both parties are able to meet the children’s emotional needs, regardless of their past failings, provided, of course, each of them remains drug and alcohol free.

g) The children’s maturity, sex, life style and background.

There is no principle of either law or psychology that pre-pubescent children are better off with one or other of their parents because of the superiority of one particular gender’s ability to provide love and nurture to young children. A mother’s love is not inherently superior to a father’s love or vice versa.

h) Aboriginality

From Ms Donald’s point of view, this is a very important consideration. It is her case that she and her family identify more strongly as Indigenous people than Mr Scanlan does. She also points to the fact that Ms S is not an Indigenous person.
As such she argues that her household is likely to be one which is more conducive to the children being able to enjoy the Aboriginal cultural inheritance to which they are heirs.
In this regard she points to the likely significance of her mother, Ms D, a respected elder from the [O] area, who is custodian of significant knowledge about Aboriginal lifestyle, culture and tradition in that area.
The principles, in the Family Law Act, emphasise a child’s entitlement to know and enjoy his or her culture. This is a theme which is taken up by section 60D(3) which deals specifically with Aboriginal children. Such children have a right to maintain their connection with Aboriginal culture and have the necessary support, encouragement and opportunity to explore that culture and develop a positive appreciation of it.
These are themes which are, in turn, given greater emphasis by section 60CC(3)(h) and section 60CC(6). The legislation recognises that Aboriginal children have unique needs and particular difficulties, as a result of the treatment of Indigenous people throughout the history of European occupation of Australia up to the present time.[4] This history is one largely of dispossession and discrimination.
[4] See Davis v Davis (2007) 38 Fam LR 671 at 689
The Full Court of the Family Court[5] has identified a number of recurrent themes, which are relevant to Aboriginal children, because of their unique position in Australian society. Courts, such as this one, are directed to bear these things in mind when making any order in respect of an Aboriginal child.
[5] See B & R and the Separate Representative (1995) FLC 92-636 at 82,398
These themes have been taken up by the legislature in its recent amendments to the applicable legislation brought about by the Family Law Amendment Shared Parental Responsibility Act (2006). These themes can be summarised as follows:
·A child whose ancestry is either wholly or partially Indigenous will be regarded as “black” by the cultural mainstream in Australia regardless of the child’s own personal identification or particular upbringing.
·Australia remains a country where racism, particularly against Aboriginal people, remains prevalent. As such, Aboriginal children are likely to be exposed to racism from an early age.
·The removal of an Aboriginal child from his or her family of origin into a Euro-centric environment is very often devastating to the child concerned, particularly if it is coupled with a separation from the child’s family of origin and culture.
·The greatest protection for an Aboriginal child, from the corrosive effects of racism or prejudice, is to be part of a community which has to deal with such discrimination regularly.
·If an Aboriginal child has access to strong role models, who share his or her racial makeup, this is likely to provide the greatest protection from exposure to racism, either institutionalise or otherwise.
·Aboriginal children who were removed from their family of origin often suffer an acute identity crisis in adolescence, particularly if they are bought up in ignorance of their culture or in circumstances which deny their Aboriginality.
·A denial of cultural identity may result in a significant loss of self esteem, which can last well into adult life, with possibly highly debilitating circumstances for the individual concerned.
I agree that Ms Donald and her family seem more in tune with issues to do with Aboriginal identity than Mr Scanlan and his family. In his evidence, Mr Scanlan relied only on the fact the children would be able to take part in NAIDOC week, that is National Aboriginal and Islander Day Observance Committee Week, if they remain in [B].
As I have indicated, it is a significant part of Ms Donald’s case that she, in tandem with Ms D, will expose the children to a wide variety of activities in the [O] area and so ensure that the children enjoy exposure to Aboriginal culture as represented by living cultural practices. By necessary implication, she regards the children taking part in NAIDOC week as, at best, inadequate and, at worst, tokenistic.
This is a significant factor. However, Mr Scanlan presents, obviously, as a person of Aboriginal extraction. As such, he cannot be regarded as an ethnic stranger to the children. In my view, he is capable of providing an adequate Aboriginal role model for the children. He will protect the children from the possibility of being exposed to the more emotionally corrosive effects of racism.
As such, I do not think that it can be said that [X], [Y] and [Z] are living in an environment currently which is inimical to them developing a sufficiently strong sense of self identity. This is not a case where the children are being placed into a Euro-centric environment.
However, I am also satisfied that it will be in the children’s best interests to have the opportunity to enjoy and experience directly Aboriginal culture through spending time with their maternal grandmother. Although, once again, it is not the optimal arrangement, I am satisfied that this can take place during school holidays.
i)The attitude that each parent has demonstrated to the responsibilities of being a parent
In the past, both parties have demonstrated an impaired level of insight into the responsibilities of being a parent. I accept both have more recently seen the error in their ways and want to do better in future.
As I say, I accepted both Mr Scanlan and Ms Donald had much to offer the children, both now and in the future. I hope that they will be more able to act together in parenting the children and they will not again use the children as potential weapons to hurt the other.
j) Family violence
k)Family violence orders
For the reasons already expressed, I find that these children have been exposed to an unacceptably high level of family violence. In my estimation, these acts of violence were not isolated but were endemic.
I am gravely troubled by this aspect of the case but do not believe that Ms Donald’s concerns are sufficient to warrant a change of living arrangements for the children, particularly as she herself acknowledges previous acts of serious violence on her own part.
I must not lose sight of the fact that she was convicted of assaulting the children’s grandmother and she is currently subject to a two year apprehended violence order restraining her from coming into contact with Ms S.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings.
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements with their parents are stable and constant and not subject to the threat of further litigation.
Ms Donald is not settled on whether she will or will not return to live in [B]. No doubt her decision depends on the outcome of this case. The independent children’s lawyer and Mrs Aitkin can see considerable appeal in [X], [Y] and [Z] being parented in a shared care regime. This would be dependent on Ms Donald returning to live in [B].
At this juncture, I can well understand why it is not personally viable for Ms Donald to live in [B] because of her own preference and the way in which she is hoping to pursue her rehabilitation in the medium to long term.
I am concerned however that it would not be in the children’s best interests to leave open indefinitely the possibility of a shared care regime, which depends on whether the mother will come back to [B], at some unspecified time in the future, which may be years rather than months away, given her antipathy for the town. This would not lead to a situation of stability for the children.
In my view, it is preferable that certain final orders be made today. In my view, the viability of a shared carer regime must be examined, if and when, Ms Donald determines she will return to live in [B] and it is known what her living arrangements are.
For that reason, I do not think it is helpful to the children to set some form of limit as to when the shared carer arrangement can possibly come into place, rather I think I must act on the assumption that

Ms Donald will remain in [L] and make orders to this effect.

Conclusions

This is a sad and difficult case. Neither party can be described as a perfect parent and both have failed as parents in the past. However, there can be no doubting the love which each has for [X], [Y] and [Z]. In this sense the children are fortunate children because they are loved children.
I am not made of stone and so am not immune to the distress which

Ms Donald has exhibited throughout this case. I accept that, too a very large extent, she identifies herself, through her role as [X], [Y] and [Z]’s mother and it is close to unbearable for her to be away from them.
However, I must remain focused on the children’s best interests. They are vulnerable children, who in the past have led disrupted and unstable lives. In my estimation what the children need now is stability and continuity in arrangements for their care. This stability is provided by their father, the presence of their friends and relatives in [B] and through regular access to their paternal grandmother.
The children do not know [L]. No doubt they would accommodate the change involved in living in [L], in time, but that accommodation is likely to come at a price for them.
At this stage of their development, to move the children to [L] would be an imprudent experiment for me to take with the children’s best interests and, indeed, it may have catastrophic consequences for them.
At this stage, I am satisfied that the children are doing as well as could be expected, in their father’s care in [B]. I do not propose to change that arrangement.
I accept Mrs Aitkin’s recommendation that the children need to spend as much time as possible with their mother. This must mean that they should spend the majority of school holidays with her.
It is also important that, in the event she is in [B], Ms Donald has an opportunity to spend with the children regularly.
The obvious solution to the tyranny of distance, in this case, is that children’s handover takes place halfway, at [L], and so both parties share the driving involved.
I have thought closely about whether I should leave open the possibility of some form of shared care arrangement for the children, say in six month’s time, in the event that Ms Donald determines that she will come back and live in [B].
I think for the reasons provided that that would be unfair to all concerned and may lead to more rather than less tension between the parties.
The best chance of a shared care arrangement being successful is if the parties both mutually embrace it. This must involve Ms Donald coming willingly back to [B].

The tenor of her evidence is that she would only come back to [B] under sufferance. At this stage I don’t think she would want to come back to [B] at all, if she can avoid it. That, however, must be a question left for her to answer.
I appreciate that this leaves open the possibility of further litigation between the parties. So be it.
For all these reasons I now publish the orders that I propose to make in this case, which outline, in detail the orders I will formally make. I will also return to Ms Donald the documents and references she wanted me to read overnight, which I did read.
So for those reasons, I make the orders which I have handed to each of the parties in written form now and which are set out at the commencement of these reasons from judgment. That concludes these proceedings.

I certify that the preceding two hundred and sixty-nine (269) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 25 November 2010