Sisley and Sisley
[2008] FMCAfam 1352
•17 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SISLEY & SISLEY | [2008] FMCAfam 1352 |
| FAMILY LAW – Parenting – whether children should live with their mother or their father – where distance makes shared care impracticable – allegations of neglect – risk of unwillingness to facilitate a close and continuing relationship. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Applicant: | MS SISLEY |
| Respondent: | MR SISLEY |
| File Number: | DGC 147 of 2008 |
| Judgment of: | Riley FM |
| Hearing dates: | 30 & 31 July 2008 1 & 22 August 2008 |
| Date of Last Submission: | 16 October 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 17 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | Warren Graham & Murphy |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Schetzer Constantinou Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Dellidis |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
The father and the mother have equal shared responsibility for [X] born in 2000 (“[X]”) and [Y] born in 2002 (“[Y]”).
[X] and [Y] live with their father.
[X] and [Y] spend time with their mother as follows:
(a)
each alternate weekend from 6.00 pm Friday until 4.00 pm on Sunday or 4.00 pm Monday if it is a long weekend, commencing
30 January 2009;
(b)for half of the school term holidays at times to be agreed and, in default of agreement, the first half;
(c)from 6.00 pm Friday until 4.00 pm Sunday on the Mother’s Day weekend;
(d)from 6.00 pm on the last day of school for the academic year until 10.00 am on Boxing Day, in 2008 and each alternate year thereafter; with the father to spend time with [X] and [Y] from 10.00 am Boxing Day until 4.00 pm on 2 January 2009, and each alternate year thereafter;
(e)
from 10.00 am Boxing Day 2009 until 4.00 pm on
2 January 2010 and each alternate year thereafter with the father to spend time with [X] and [Y] from the last day of school for the academic year until 10.00 am on Boxing Day in the year 2009 and each alternate year thereafter;
(f)
from 6.00 pm on 2 January 2009 until 4.00 pm on
16 January 2009in each year (with the father to spend time with [X] and [Y] from 16 January until the commencement of the academic year);
(g)from 10.00 am on Good Friday until 4.00 pm on Easter Sunday in the year 2010 and each alternate year thereafter;
(h)as may otherwise be agreed between the parties from time to time.
Notwithstanding anything contained in these orders, [X] and [Y] spend time with their father from 10.00 am on Good Friday until 4.00 pm on Easter Sunday in the year 2009 and each alternate year thereafter, and their time with their mother is suspended during that period.
In the event that Father’s Day falls on a weekend that [X] and [Y] are to spend time with their mother, then that time is to be suspended, so [X] and [Y] spend that weekend with their father.
[X] and [Y] communicate with their mother by telephone each Tuesday, Thursday and Sunday at 7.00 pm when they are with their father, with [X] and [Y] to place the call to the mother’s landline and with the father to facilitate the call.
[X] and [Y] communicate with their father by telephone each Tuesday, Thursday and Sunday at 7.00 pm when they are with their mother, with [X] and [Y] to place the call to the father’s landline and with the mother to facilitate the call.
Both parents ensure that [X] and [Y] telephone the mobile telephone of the parent they are not with on Christmas Day at 9.00 am.
For the purposes changeover, the mother collect [X] and [Y] from the [B] Post Office at the commencement of their time with her and the father collect [X] and [Y] from the [E] Post Office at the conclusion of their time with the mother.
Each of the mother and the father:
(a)attend and complete, as soon as practicable, a Parenting Apart post separation parenting program ("the program") at an organisation or organisations as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other party or their solicitors.
Both parents keep each other informed, at all times, as to their current residential landline and mobile telephone numbers and if there is a change in either parents’ address or contact telephone number, then the relevant party shall notify the other of that change within 7 days.
Both parents keep each other informed as to any medical treatment required by [X] and [Y] and/or medical emergencies pertaining to [X] and [Y] and both parents have access to [X] and [Y]’s medical records and/or reports.
The parents use a communication book for exchanging information about issues involving [X] and [Y] and for no other purpose, with the book to travel with [X] and [Y] at changeover.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and [Y], and from permitting any other person to do so.
The mother be in substantial attendance at all times when [X] and [Y] are in her care.
The father shall authorise [X] and [Y]’s school to provide the mother, at the mother’s expense, with notices, reports and information usually provided to parents and the mother be at liberty to attend all events that parents usually attend conducted by the school.
Both parents ensure that any medications prescribed for [X] and [Y] are administered in accordance with the prescription.
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sisley & Sisley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG AND MELBOURNE |
DGC 147 of 2008
| MS SISLEY |
Applicant
And
| MR SISLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the mother’s application filed on 19 December 2007 for parenting orders in respect of [X] who was born on 8 March 2000 and who is now eight years old and [Y] who was born on 25 January 2002 and who is now six years old.
The mother and father are both 42 years old. They were both living in [L], in southern New South Wales, in 1997 when they began a relationship. In 1999, the mother became pregnant with [X]. After her birth in March 2000, the mother and father began living together in [L], where they remained until 2001. Between 2001 and June 2003, the parents lived together in [C], in eastern Victoria. [Y] was born in January 2002.
In June 2003, the father was charged with assaulting the mother and released on bail. The father moved to a house several doors down the street from the mother in [C]. [X] and [Y] remained living with their mother and spent time with their father. After several months, the parents resumed their relationship but did not live together. From 2004 until November 2007, the father lived in [L] with his parents during the week and spent the weekends with the mother and [X] and [Y].
The mother and father finally separated in November 2007. Around April 2008, the mother moved to [E] with her new partner, Mr P. The mother intends to remain living in [E] with Mr P, and his 18 year old son, [Z]. The father now lives in [L] with [X] and [Y]. The paternal grandparents assist in their care.
After separation, at the end of November 2007, the father discussed with the mother the possibility of him taking [X] and [Y] on a holiday with him to Canberra where his sisters live. The mother said that she agreed on the basis that the father would return the children to her on
2 December 2007. He said that the mother agreed to him taking the children for an indefinite period. I accept the mother’s evidence on this matter. I consider that her account was inherently more plausible, and, as indicated below, I consider that the father gave untruthful evidence in relation to a number of matters. In any event, the father did not return [X] and [Y] to their mother on 2 December 2007.
Consequently, the mother applied for a recovery order on 19 December 2007. The application was listed for hearing in the Magistrates Court of Victoria at [R] on 20 December 2007. The father made various allegations against the mother which, on the basis set out below, I consider to be untrue. The mother became very upset and left the court without waiting for orders to be made. Consequently, she did not recover [X] and [Y]. They remained living with their father in [L].
The matter was adjourned to 9 January 2008. The mother did not attend court on that occasion. The matter was then transferred to the Federal Magistrates Court in Dandenong and listed for interim hearing on 3 March 2008.
The mother had some telephone contact with [X] and [Y] between
20 December 2007and 2 February 2008. The father agreed that the mother could spend time with [X] and [Y] on 2 February 2008 for [Y]'s birthday (which is in January). That meeting occurred but went badly, as described in more detail below.
The matter was heard in this court on an interim basis on 3 March 2008. On that date, interim orders were made by consent for [X] and [Y] to continue living with their father and to spend alternate weekends from 8.00 pm Friday until 5.00 pm on Sunday and half of school holidays with their mother.
During most of the mother and father’s relationship, the mother's children from a previous relationship were living with her. Those children are [T], who is 17, [U], who is 15, and [W], who is 13.
[T], after the separation of the mother and father in this proceeding in November 2007, moved to [O] to live with his father, Mr R. [T] now attends high school in [B], which is the only high school in the area. At the beginning of 2008, [T] was not spending time with the mother. However, on 30 July 2008, she gave unchallenged evidence, which I accept, that [T] was going to spend the following weekend with her and [X] and [Y] in [E]. They had not spent time with [T] and the mother together since February 2008.
In July 2007, [U] moved to [O] to live with her father, Mr R. She started attending school in [B]. After separation in November 2007, at Christmas 2007, [U] returned to live with her mother. However, she wished to continue attending school in [B]. In 2008, the mother arranged for [U] to stay in [O] from Monday to Friday with Mr P’s
20 year old daughter, who is the single mother of a four year old child. The mother would collect [U] on Friday afternoons and return her to school on Monday mornings. After the end of first term in 2008, [U] moved to [E] to live with her mother. [U] now travels 120km each way per day by bus to attend school, except that she stays overnight in [O] on most Tuesdays, after band practice, and on other occasional nights for sleepovers. When she remains in [O], [U] stays with Mr P’ parents or with friends.
[W] obtained a part scholarship in 2006 to attend [G] School in [S] as a boarder. During 2007, so that [W] could spend weekends at home, the mother generally collected [W] on Friday nights and returned her on Sunday evenings. In 2008, the mother saw less of [W], because she had netball commitments on Saturdays until June. However, in July 2008, the mother spent time with [W] on four occasions.
The proposals of the parties
The mother proposed, and the father and the independent children's lawyer agreed, that the parents should have equal shared parental responsibility for [X] and [Y]. The mother further proposed that [X] and [Y] should:
a)live with her;
b)spend alternate weekends from 7.00 pm Friday until 4.00 pm Sunday, half of school holidays and special occasions with their father;
c)have telephone contact with their father on Tuesdays, Thursdays and alternate Sundays and special occasions; and
d)have changeover at the [B] Post Office at the commencement of the time with the father and at the [A] Hotel in [E] at the conclusion of that time.
The father proposed that [X] and [Y] should:
a)live with him;
b)spend alternate weekends from 6.00 pm Friday until 4.00 pm Sunday, half school holidays and special occasions with their mother;
c)have telephone contact with their mother each Wednesday and alternate Sunday; and
d)have changeover at the [B] Post Office at the commencement of [X] and [Y]'s time with their mother and at the [E] Post Office at the conclusion of that time.
The mother argued that there was a real risk that the father would not facilitate a relationship between her and [X] and [Y] if they continued to live with him. The father argued that [X] and [Y] should continue living with him because he could provide them with a safe and stable environment. He argued that the mother had been neglectful of [X] and [Y], and the older children, in the past and would be likely to be neglectful of [X] and [Y] in the future.
A family report was prepared by Tony Gee. In summary, Mr Gee said:
48. Like many matters, the Court is faced with quite different perspectives and, within these, has the difficult task of weighing the children’s best interest. It may be that the Court will need to test some of the evidence to clarify and adjudge some of the concerns raised. If the Court is satisfied regarding the mothers capacity, it could be argued that the children would be likely to adapt to the different care and lifestyle available in either household and manage relatively well, so long as they were having sufficient time in the other.
49. In saying this however, on the balance of discussion and observation described in this Report, there appears to be a stability and continuity with the father, and in the writers opinion the children appear to be happy and well cared for in their current situation. On balance, therefore, in the writer’s opinion, there does not appear to be a strong enough argument at this time for a change of living arrangements.
50. It would also appear that because of the distances involved, the current plan of time with the mother each alternate weekend and half holidays, as well as an arrangement regarding special occasions is likely to be most workable. The children would also have time with their siblings coordinated at the mothers, and/or may have other arrangements with the father.
Counsel for the independent children's lawyer said at the commencement of the hearing:
… the family report author struggles with [the] evidence in terms of, it appears, the circumstances in which the children were living in the year leading up to the parties' separation; secondly the circumstances around which they come to be living with their father and having little time with their mother; and thirdly there is a distinct flavour in the report that the author has been unable to determine with any confidence the degree to which the father in particular perhaps and his household, all family members, have been able to promote a positive image of the mother - the absent mother - to [[X]] and [Y] ….
In the end, the recommendations err on the side of maintaining a degree of stability that the independent children's lawyer accepts the children find themselves in currently, but there is a certain reservation in terms of that having been a difficult balancing exercise. The independent children's lawyer is of the view that subject to a testing of the evidence, and in particular some of the more pertinent allegations against the mother about her drug use and her future parenting capacity, and with respect to the father, his capacity to facilitate a relationship with the mother and the children, it is the independent children's lawyer's view that the current arrangements ought remain.
At the conclusion of the hearing, the independent children's lawyer continued to support [X] and [Y] living with their father, largely for reasons of stability. The independent children’s lawyer submitted that the mother towards the end of the parents’ relationship was almost single-handedly looking after the children, and used [T] excessively to assist in the care of [X] and [Y]. The independent children’s lawyer submitted that the father was complicit in this. However, the independent children’s lawyer submitted that the mother was providing an adequate degree of care, and submitted that the father’s allegations of neglect were without substance.
Nevertheless, the independent children’s lawyer submitted that [X] and [Y] were being well cared for by their father and he was emotionally attuned to them while they reported some fear of their mother. The independent children’s lawyer noted that the family report writer did not consider that the father was engaging in a conscious campaign of alienation. On balance, the independent children’s lawyer recommended that [X] and [Y] remain with their father.
I note that, apparently due to funding restrictions, the independent children’s lawyer was not able to be in court to hear all of the evidence. It would obviously have been very difficult for her counsel to convey to her all of the matters of significance that transpired in court. There is a fundamental problem with a party, particularly an independent children’s lawyer, not being present during the hearing to give instructions to counsel. The benefit in appointing independent children’s lawyers is greatly diminished if they are not able to participate fully in the process. Unfortunately, it is the children who are likely to bear the consequences of the funding restrictions.
The best interests of [X] and [Y]
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60cc(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. I will address each of those considerations in order. The findings set out below are based on my consideration of the evidence as a whole, although, for convenience, the findings are stated immediately after the evidence in relation to each matter when it is canvassed.
Section 60cc(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It was not disputed, and I agree, that [X] and [Y] would benefit from continuing to have a meaningful relationship with both of their parents.
Section 60cc(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
a. family violence in June 2003
The mother said that in June 2003, during an argument, the father punched her in the face with a closed fist and hit her several times. The mother said that the police were called and the father was removed from the home and charged with assault. The mother said that the father undertook an anger management course.
The father denied that he had punched the mother. He said that she had scratched him and he pushed her in retaliation. However, he conceded that he was charged with assault and bailed. The father also conceded that the conditions of bail required him not to return to the mother's house. The father agreed that the charges were not pursued because he and the mother reconciled. The father agreed that he was ordered by the court to undertake an anger management course. However, he claimed that he did not have any difficulty controlling his anger. He said that he was ordered to do the anger management course as a result of a mix up.
It seems to me to be inherently improbable that, if the father had merely pushed the mother in retaliation for her attacking him, he would have been charged with assault, bailed, required as a condition of his bail not to return to the mother's house and ordered to do an anger management course. I also consider that the father did not appear to be telling the truth when he gave evidence on this matter. Consequently, I find that the father in June 2003 punched the mother in the face with a closed fist.
The mother also alleged that the father punched [T] during this incident. In response, the father’s counsel put to the mother that the father had placed [T] between himself and the mother to stop her attacking him. Even if that is true, it seems to me that using [T] as a shield was little better than actually hitting him. Leaving the house for a time would have been a much better option. I accept the father’s allegation that the mother physically attacked him. That is in keeping with her admitted behaviour on 2 February 2008, which is described below.
The allegation that the father hit [T] was mentioned in a contemporaneous police record. In view of that report, the mother’s evidence, and the father’s false denial that he punched the mother in the face with a closed fist, I accept that the father hit [T] during the incident in June 2003. All in all, I consider that the whole episode reflects badly on both parents, but primarily on the father.
b. other family violence during the relationship
The mother alleged that the father assaulted her, and the father alleged that the mother assaulted him, on a number of other occasions during the relationship. However, the evidence about those allegations was not sufficiently clear for me to make any specific findings about them. Overall, however, I consider that the relationship between the mother and father was punctuated by violent episodes to which both parents contributed.
c. background to the neglect allegations
The father alleged that the mother neglected [X] and [Y], and the mother’s older children, in a variety of ways. He did not raise any allegations of neglect with the mother, or any external authority, until after separation. The father’s allegations seemed to be confined to the last six weeks before separation, that is, from mid October 2007 to the end of November 2007. At that time, the father was living about an hour and 10 minutes away, in [L], from Sunday evening to Friday evening and the mother cared for the children substantially alone. The mother said that the father was not giving financial support to her, [T], [U] or [W] and she had to work to support herself and them.
I accept the mother’s claim that she was renting her house in her own name and was responsible for the rent. The only financial contribution that the father was able to substantiate was the purchase of a fridge and freezer on hire purchase in January 2007. Otherwise, the father claimed that he gave the mother cash. I am not persuaded that he gave the mother sufficient cash to adequately support the whole family.
As well as working, the mother was completing her final year of a diploma in child services and had one unit left. She was required to work in a child-care centre to qualify for her diploma, and she was required to do preparation at home. The mother said that her paid employment included positions at a [omitted].
The mother said, and it was not disputed, that she had to pay $6,000 for [T]’s orthodontic work, and had to take him to Melbourne and [R] for his treatment. It was not disputed that in 2006 [W] obtained a part scholarship to attend [G] School in [S] as a boarder. It was not disputed that the mother was responsible for one third of [W]’s school fees.
In 2007, the mother said that she was travelling 1800 km a week to enable [W] to spend weekends at home. The distance between [C] and [S] is about 240 km. The two round trips on Friday and Sunday evenings would total about 1000 km. The mother also had to travel about 170 km each way from [C] to [R] for work and no doubt make the usual local trips. Accordingly, I accept that in 2007 the mother was spending a great deal of time and effort in driving herself and her children from one place to another. The mother said and it was not disputed that the father refused to assist with taking [W] to and from [R]. The mother said that she was tired but had no choice but to continue with her hectic schedule.
The father said in his affidavit that the mother suffers from Crohn’s disease and when it is acute she is exhausted and bedridden. The father said that on 11 and 12 October 2007, the mother kept the children home from school because she was depressed, crying in bed and incapable of caring for herself. The father, on the other hand, admitted that he was able to take time off work to meet family responsibilities if need be.
I find it extraordinary that the father could criticise the mother for being “incapable of caring for herself”, at a time when he thought the relationship was still continuing, and when the mother was physically and emotionally ill. He should have been sufficiently attuned to the needs of his family to have taken time off work to care for the mother and help her to care for the children on 11 and 12 October 2007, if not on other occasions as well.
d. the mother’s alleged drug use
Against this backdrop, the father alleged that the mother was taking drugs. The father adduced no probative evidence in support of this claim. The mother produced a clear drug screen. The father ultimately did not press the issue. I consider that there is no proper basis upon which the court could conclude that the mother was taking drugs. I also consider that the father has made a very serious and highly prejudicial allegation against the mother without any proper basis for it.
e. the mother’s alleged threats to kill herself, [X] and [Y]
The father also alleged that the mother had said on at least two occasions, “It might be easier if I killed myself and the children”. The mother denied saying any such thing. She said that she might have said to the father, “You would be better off without me”, in the sense that he would be better off if they separated. The mother said that she had never been suicidal and had certainly never threatened to kill the children. She said that allegation was a lie.
I accept the mother's evidence on this matter. I consider that the father, in view of his unsupported allegation about the mother taking drugs, his false evidence about not hitting the mother with a closed fist, and his other false evidence set out below, has demonstrated a willingness to distort the facts to support his claims. I find that the father’s allegation that the mother had threatened to kill herself and the children was a highly prejudicial and very serious false allegation.
f. [X]’s alleged urinary tract infections
The father alleged that [X] had suffered from recurring urinary tract infections and the mother failed to seek medical attention for that condition. The mother said that [X] had never had a urinary tract infection but had thrush. The mother said that the thrush was treated with a cream which the mother taught [X] to apply herself. The mother said that [X] would sometimes tell the father that she needed the cream and he would give it to her. The mother said that prior to separation the father had never complained to her that she had failed to properly treat any infection of [X]'s genital area. It was put to the father that his allegation about [X] having a urinary tract infection was wrong but he did not accept that.
The father did not produce any medical evidence to the effect that [X] had ever had a urinary tract infection that was left untreated. In the absence of such evidence, I do not accept that [X] had a urinary tract infection. On the other hand, I accept the mother's admission that [X] had thrush. In view of the detail that the mother gave about the treatment of that condition, I accept that the mother obtained treatment for [X]'s thrush. There is insufficient evidence before me to conclude that the treatment the mother obtained for [X]’s thrush was anything less than satisfactory.
g. [Y]’s alleged eczema
The father alleged that [Y] had eczema and the mother failed to ensure that her medication was applied regularly. The parties accepted that it was eventually ascertained that [Y] did not have eczema but had molluscum contagiosum. Not surprisingly, that condition did not respond to the eczema medication. The father said that, in any event, the mother was not applying the medication. However, the father was not in the house from Sunday evening to Friday evening. He could not say from his own knowledge what the mother was doing. The fact that [Y]'s skin condition did not resolve does not mean that the mother failed to apply the medication. It could simply mean that [Y] had been misdiagnosed. Accordingly, I do not accept the father's allegation that the mother failed to apply [Y]'s medication.
h. the alleged lack of supervision of [X] and [Y]
The mother said in an affidavit that, after July 2007, and when she needed to work outside school hours, she sometimes left [X] and [Y] in [T]’s care. [T] turned 16 in August 2007. She also said that sometimes, by prior arrangement, the neighbours would care for [X] and [Y] or they would go to the neighbours’ house. [X] and [Y] were then seven and five years old respectively.
The father called evidence from a neighbour, Ms E. Ms E said in a letter dated 28 December 2007 and annexed to an affidavit that:
On a number of occasions I have looked after the younger two children [X] and [Y] as the mother was not at home or contactable by phone. Over the last six months this had become increasingly more frequent with the younger children being left in the care of their brother [T] for days at a time.
…
Over the past two months [T] has been caring for the two young girls on an almost full-time basis as their mother has been constantly out of town. I have had them over for meals as there were times when they did not have food in the house. Myself and my partner [name omitted] also collected the children from school on numerous occasions when it was raining or very hot or there was something to be brought home but was unable to be carried as the children's mother was not available.
I also work with [Ms Sisley] in [C] …. Her behaviour has become eratic and unpredictable in the past few months, she has become aggressive when upset with the children and difficult to deal with at work and at home. …
The mother conceded that Ms E had looked after the children from time to time but said Ms E always knew how to contact the mother and knew what time she was due home. The mother conceded that she had used [T] to assist her with the care of [X] and [Y]. The mother denied that she had left [T] in charge of [X] and [Y] overnight by himself, and said that there were always other adults present. Later, when it was put to her that she had stayed away from home mid week and left the care of the children to other people, the mother said it was only during the school holidays and for one or two weeks of the school term.
The mother conceded that Ms E and her partner had collected the children from school on numerous occasions, but said that it was when [T] was on crutches and the mother was working. The mother claimed that she and Ms E worked as a team and helped each other. Ms E does not have children. The mother said that she paid Ms E for looking after the children but her counsel later resiled from that claim.
Ms E said that she looked after the children in the early part of 2007 about once a fortnight and usually by prearrangement. She said that, in September, October and November of 2007, she was looking after the children a couple of times a week. She said that usually the children would walk home from school by themselves but sometimes the children would telephone her from school and ask her to collect them.
In relation to her claim that [T] was caring for [X] and [Y] for days at a time, she said she meant that the mother would leave for [R] before [X] and [Y] left for school and get home after [X] and [Y] went to bed on the night of the following day. Ms E said that, on those occasions, [T] would look after the children but they would go to her house to visit. Ms E said that she did not have any concerns at the time about leaving [X] and [Y] in [T]’s care. She said that was because at the time she and the mother had a relationship, the mother said it was a temporary arrangement and Ms E was usually on hand if they needed her. Ms E said that, to her knowledge, [T] was left with [X] and [Y] overnight about 10 times in six months. In addition, Ms E said there were a couple of occasions when the mother had arranged for her to care for the children.
Ms E agreed that the mother did not in fact work overnight but said that she stayed in another town for the purposes of work or study.
Ms E said that she knew that the children were left alone overnight because they would visit her in the evening and she would pick them up in the morning to take them to school.
In relation to her claim that [T] was caring for [X] and [Y] on an “almost full-time basis”, Ms E said that it seemed to her to be full-time for a 15 year old. However, it is clear that Ms E exaggerated this aspect of her evidence. The detail of her evidence was that [T] looked after [X] and [Y] from before school on one day to after bedtime the next day about once every two and a half weeks during the second half of 2007.
Ms E said that she was aware that the mother was under a certain amount of pressure in late 2007. Ms E said that she did not complain about the situation because she thought it was temporary and was for reasons of study and work. However, she later learned that the mother had commenced a relationship with Mr P and believed that the mother had been dishonest with her about the reasons for leaving the children alone. Ms E agreed that the breakdown of her relationship with the mother was the result of Ms E's perception that the mother had been dishonest with her about the reasons that she needed assistance with childcare. Ms E agreed that she had sometimes assisted the children with meals by arrangement but maintained that there had been occasions when there was no food in the house.
Ms E said that the father had asked her to write the letter dated
28 December 2007. She said that the purpose of the letter was to support [X] and [Y] staying with their father.
I consider that Ms E was motivated to write her letter dated
28 December 2007because she felt that the mother had used her and deceived her. Ms E apparently formed the view that the mother was not coming home to look after the children because she was busy having an affair with Mr P, rather than because she was busy with work and study. It is clear that Ms E has exaggerated some of the claims in her letter.
Nevertheless, I accept that the mother left [T] to care for [X] and [Y] from before school on one day to after bedtime on the next day about 10 times between June and the end of November 2007. Ms E's evidence on this point seemed to me to be credible and consistent. It was also consistent with [Y]’s statement to the family report writer that [T] had looked after them when the father was away during the week. The mother gave inconsistent evidence about whether she was meant to return to [C] after [T] hurt his ankle, as discussed below. The overall effect of the evidence in relation to [T]’s injury was that the mother had not had any intention of returning to [C] on that night and the mother had expected [T] to look after [X] and [Y]. For these reasons, I do not accept the mother's evidence that each time she did not return to [C] for the night she had prearranged for another adult to mind the children.
I accept that a child of 15 or 16 would normally be well able to care for a seven year old and a five year old for a few hours, provided that backup was close at hand if need be. However, I do not accept that it was acceptable for [T] to care for [X] and [Y] 10 times in six months from before school one day until after bedtime the next, even if Ms E was usually available if needed. It was unfair to give [T] that sort of responsibility and unsafe for [X] and [Y], especially as [Y] is an asthmatic. I consider that the mother fell short of her responsibility as a parent in relation to this matter.
the alleged failure to care for [T] when he hurt his ankle
It seems that on or about 2 August 2007, the mother was working in [R] when [T]’s ankle was injured at school in [C]. The father alleged that the mother had failed to care for [T] adequately by failing to take him to hospital for x-rays and by failing to return from [R] to look after him that night.
The mother said in oral evidence that [T]’s ankle was injured at school while he was playing sport and he needed an x-ray. The mother said that she was working in [R] at the time. She said that she had spoken to [T] and the school staff by telephone and they organised a plan of attack. The mother said that she spoke to Ms E personally. The mother said that Ms E had offered to take [T] to [omitted] for the x-rays and had agreed to take [X] and [Y] to stay with another friend of the mother’s in [C]. The mother said that she was due home that night. She said that she was in constant telephone contact with [T] and Ms E.
The mother did not give forthright evidence in answer to the question, “Did you return home that night?” However, she eventually conceded that she probably did not. Contrary to her earlier oral evidence that she had been due home that night, the mother said that she had prearranged for the children to stay overnight at Ms E's because the mother was working in [R] the next day. The mother said that she had been willing to return home that night. However, it became quite clear that she did not.
The father called evidence from Ms E on this point. Ms E said in her affidavit that:
One afternoon a couple of months ago I received a phone call from the [C] P-12 college as [T] had seriously injured his ankle and needed to be taken to hospital to have x-rays and his mother was away and uncontactable by phone. [T] and I organised a family friend to care for the girls while we travelled one hour to the nearest hospital. After the medical treatment we returned to collect the girls and contacted [Ms Sisley] their mother who informed me she was too tired to return home that night so I kept [T] and [X] and [Y] with me for the night as I believed it was unsafe to expect the fifteen year old brother to care for a five and seven year old child alone while injured and on crutches.
In examination in chief, Ms E said that her affidavit may have been incorrect in that the telephone call to the mother might have taken place while Ms E and [T] were at the medical centre rather than afterwards.
Ms E accepted that [T]’s injury may have occurred on Thursday 2 August 2007. Ms E initially said that someone from [T]’s school telephoned her and asked her to take [T] to hospital. However, Ms E then accepted that it may have been the mother who made that request. Ms E conceded that [T] had a couple of telephone conversations with his mother while he was at the hospital. Ms E conceded that the mother had told her that she was tired and would be working in [R] the next day. Ms E conceded that when the mother told her that, Ms E told the mother that she would take [T], [X] and [Y] to her house and care for them that night. Ms E conceded that she and the mother had discussed whether the mother would be required to return to [C] for the night or not and Ms E had offered to mind the children. Ms E conceded that the mother, after [T]’s injury, had not planned for him to mind [X] and [Y] overnight. Ms E denied that there had been any prearrangement for her to mind the children on that particular night. Ms E said that [T] had told her that he had been expected to mind [X] and [Y] that night himself. Ms E also said that [T] had been distressed on the way to hospital and in tears at the surgery.
From this evidence, it is clear that, contrary to Ms E's evidence, the mother was not uncontactable by telephone during this incident. However, I accept Ms E's evidence that there had been no prearrangement that she would mind [T], [X] and [Y] that night. The mother changed her evidence on whether she was due back home on the night in question. She was also evasive about whether she returned home that night.
Consequently, I find that the mother had intended to leave [X] and [Y] overnight in the care of [T], who had not yet turned 16, on or about
2 August 2007. I find that [T] had suffered a substantial injury, was distressed and needed the care of a parent rather than a family friend.
I find that the mother failed to personally arrange appropriate medical care for her son when he was injured and failed to return home to care for him that night. I accept that the mother was tired and it is a long drive from [R] to [C]. However, the mother put herself in a position where she was unable to respond appropriately to emergencies involving her children.
j. the alleged failure to collect [T] and his girlfriend at
1.00 am
The father said that the mother left [T] and his girlfriend to catch a bus that left [R] at 11.00 pm and arrived in [C] at 1.00 am. The father said that the mother had promised to collect them from the bus stop but failed to do so. The father said that [T] and his girlfriend had to walk home by themselves and they remained in the house unsupervised overnight. The father said that the mother did not get home until
10 o'clockthe following morning.
It was put to the mother that she was not at home that night because she was with her new partner, Mr P. The mother said that she was not with Mr P. She said that she was at home asleep in bed. She said that she and the children had gone to Sydney for the weekend to visit relatives and they returned on Sunday evening. The mother said that the following morning, [T] drove [W] to her bus stop in [R], with the mother supervising the driving. The mother said that the car broke down and had to be left in [R] for repairs. The mother said that she got a lift back to [C] but [T] stayed on as previously arranged to see friends. The mother said that his year level had finished school for the year. She said that she intended to collect [T] and his girlfriend from the bus stop as arranged but she had fallen asleep.
I accept that the mother was asleep in the house rather than elsewhere with Mr P. The father did not state the source of his knowledge that the mother did not get home until 10 o'clock the next morning. I am persuaded of the father’s claim in that regard.
However, the mother conceded that she did not collect [T] and his girlfriend from the bus stop at 1.00 am contrary to her promise to do so. She also conceded that they had to walk home. They apparently managed to do that without incident. There was no evidence about how far the mother's house is from the bus stop. [T] had just finished year 10.
The mother's failure to collect [T] and his girlfriend from the bus stop left them in a vulnerable position. The mother also failed to keep a promise that she had made to collect them. While I accept that the mother was tired, with the benefit of hindsight, she should have gone to bed but set an alarm to make sure she could wake up in time to collect [T] and his girlfriend.
k. the truck driver
The father said that shortly prior to 29 November 2007, the mother was arranging for [W] to travel from [C] to [R] on a Sunday night with a truck driver. The mother conceded that she did this on two occasions several weeks apart. The mother said that on the first occasion, she was exhausted and did not feel capable of undertaking the long drive safely. She said that on the second occasion she was working. The mother said on both occasions the father knew beforehand that [W] would be travelling with the truck driver who was a friend of the mother’s.
I accept the mother's evidence on this matter. However, it was a potentially dangerous arrangement. [W] was about 12 years old at the time. It is well known that paedophiles befriend vulnerable women with children in the hope of finding opportunities to prey upon the children. It is also well known that paedophiles are able to present themselves as trustworthy and helpful. Fortunately, there is no suggestion that anything untoward occurred in this case. However, that was sheer luck.
I accept that the mother, shortly before separation, had an exhausting schedule. On the first occasion when she allowed [W] to travel by truck to [R], because the mother was too tired to drive, she had to choose between unacceptable alternatives. On the second occasion, when the mother was working, she failed to give priority to [W]’s need to be physically and psychologically safe.
l. [Y]’s ear infections
The father said that the mother failed to obtain proper medical attention for [Y]'s repeated ear infections, and had unreasonably refused to allow grommets to be inserted surgically in [Y]'s ears. The father produced an audiology report which showed that [Y] had some hearing loss. However, the father conceded through his counsel that the hearing loss was not permanent. The mother agreed that [Y] did have ear infections from time to time but maintained that she arranged proper medical care for [Y] while [Y] was living with her. The mother said that she did not want grommets to be surgically inserted in [Y]'s ears.
The father produced a letter dated 9 May 2008 from Dr P. His letterhead suggests that he is a surgeon who specialises in otolaryngology and head and neck surgery. His letter said:
I saw [Y] on 27 March 2008. She had a history of several episodes of otitis media over the last six months. The hearing test revealed a small conductive hearing loss and the examination demonstrated the presence of middle ear effusion.
I have discussed with [Y]'s father the option of grommet insertion to help with her hearing and recurrent ear infection.
On the basis of this material, the father made an oral application on the last day of the hearing after the close of evidence for an order that the father be permitted to authorise [Y] to have a surgical procedure for grommets to be inserted into her ears without the consent of the mother. The father said that his application was supported by his oral evidence about a conversation that he had had with Dr P.
The court pointed out that the father’s evidence about his conversation with Dr P was hearsay. The court also pointed out that Dr P had only said in his letter that he had discussed with the father the option of grommets, and had not gone so far as to recommend that grommets were appropriate in [Y]'s case or were the best option for [Y].
After some discussion, the father withdrew his earlier application and put forward an alternative application. The father sought an order that, if Dr P confirmed in writing that he considered it to be appropriate for [Y] to have grommets inserted, and if the mother failed to make an application to stay that procedure prior to 14 November 2008, then the father be permitted to sign all necessary consents to enable the procedure to occur.
At this point, the court said that the father was seeking to invert the usual legal procedure and had failed to marshal his evidence in support of an order that [Y] have grommets inserted, notwithstanding that six weeks had passed since the issue was first raised. The court said that the insertion of grommets might be appropriate, in a broad sense, but not necessarily the best course of action for [Y]. Additionally, the court pointed out that, for reasons of natural justice, it was not appropriate to deal with such a serious matter without giving the mother an opportunity to gather her own medical evidence about other options. The father then withdrew that application also.
I am unable to accept that the mother's unwillingness to consent to [Y] having grommets surgically inserted in her ears indicates that the mother has neglected [Y]'s health. Before having any surgical procedure, it is good practice to ascertain the benefits and risks of the surgery, the benefits and risks of all of the other treatments that might be available and the benefits and risks of doing nothing. The material put before the court does not set out the benefits and risks for [Y] of having grommets inserted and does not explore the various other options that might be available. The court is left in the position of having insufficient material to form any view about whether it is in [Y]'s best interests to have grommets inserted. Accordingly, the court is unable to form a view about whether that the mother has neglected [Y]'s health by not consenting to the procedure.
At the risk of stating the obvious, [Y]’s immune system would be better able to deal with infection if she had adequate sleep, a balanced diet with plenty of fruit and vegetables and minimal stress in her life.
m. the mother’s alleged failure to equip [X] and [Y] with life jackets
The father alleged that he had been told that the mother and Mr P had taken [U], [W], [X] and [Y] in a 12 foot tin boat off the coast of [E] without providing lifejackets for [X] and [Y] and in circumstances where only two people on board could swim. The mother agreed that the six people mentioned had been on the boat but thought it might have been a 14 foot boat. The mother also said that [U] and [W] were good swimmers and she and Mr P could swim. The mother initially said that she did not know if [X] and [Y] could swim. However, she then said that they could tread water and dog paddle. In any event, the mother maintained that [X] and [Y] had lifejackets. She said that she had photographs of [X] and [Y] wearing them. However, the mother said that the photographs were on her mobile telephone which was broken and she was in the process of asking the manufacturer to enable her to get the photographs. The mother gave that evidence on 30 July 2008. For one reason or another, the last day of the hearing did not take place until 16 October 2008. The mother did not produce any photographs at any time prior to that date.
Mr P gave strong evidence that [X] and [Y] were wearing life jackets when they went out in the boat with him. I found Mr P to be a credible witness. He made concessions appropriately and appeared to be honest and straightforward.
I am not convinced that the mother did have photographs of [X] and [Y] wearing lifejackets. However, the father's claims about these matters are patently hearsay. I do not consider the father’s evidence to be particularly compelling. In view of the false evidence that the father has given about other matters, and in view of the mother’s and Mr P’ sworn evidence that the children were wearing lifejackets, I do not accept the father’s allegation that the mother failed to adequately care for [X] and [Y] by failing to ensure that they wore lifejackets when they were in a boat at sea.
n. [Y]’s asthma plan
On 19 March 2008, in an entry in the communication book, the father said that [Y]’s asthma medication, Seretide, had been reduced from MDI 250/25 to MDI 50/25. The father implied that the mother had been remiss in some way by having [Y] on too high a dose of Seretide. The mother is not a doctor. Any dosage that [Y] was taking was prescribed by a doctor. The mother should not be criticised if the dosage that [Y] was previously on was too high.
The father said in the communication book on 19 March 2008 that he could provide [Y]’s current medication to the mother. However, it is implicit in the communication book that he did not do so, at least until 9 April 2008. The father said that it would be dangerous for [Y] to go from the lower dosage that she had been on while living with him, to the higher dosage that she had been on previously when living with the mother. Obviously, the mother would have needed to read the communication book, take [Y] straight to a doctor, obtain a prescription for the same dosage that the father had obtained, and then administer it. That would not be so easy on a Friday night. The consequence that the father should have foreseen was that [Y] would not have her proper dosage before going to bed on Friday night as specified in her asthma plan.
I consider that the father failed to attend properly to [Y]’s health by failing to give the mother the correct medication when he handed [Y] over to the mother. It is apparent in the communication book that the father was more concerned to criticise the mother for [Y] being on the wrong dose of Seretide (although that was obviously a doctor’s doing) than he was to ensure that [Y] had the correct medication.
It is also apparent that the father received an asthma plan for [Y] on
28 March 2008but did not give it to the mother until 9 April 2008 at the earliest. The father should have sent the asthma plan to the mother, as soon as he received it, to enable the mother to absorb it and be ready to act in compliance with it as soon as [Y] entered her care. It is well known that asthma can be a life-threatening emergency. It is not a condition that can be treated as an opportunity to score points against another party to litigation.
While on the topic of the communication book, I note that the mother confiscated the book because she did not like the father’s tone. The father said in his entry for 9 May 2008:
Please grow up. Responsible parenting is essential to all the children all 5!! Life is not just a party!! Please respect them and who they are!!
Previously, he had berated the mother at length about various alleged failings on her part. I consider that the father’s tone in the communication book was objectionable. He was preaching and controlling. For future reference, he should think twice before writing anything in the communication book that he thinks needs an exclamation mark after it. The communication book should be used only for factual information and it should be expressed in a reasonable and courteous way. It is not to be used for berating the other parent.
Having said that, the court orders of 3 March 2008 required the parents to use a communication book. The order was made in the best interests of [X] and [Y]. I do not consider that anything the father said, or the manner in which he said it, justified the mother in failing to comply with the court order to use a communication book. In confiscating the book, in about May 2008, the mother showed impulsive behaviour that was not in the best interests of the children.
o. observations on the neglect allegations
I do not consider that the father was entirely blameless in relation to the mother’s neglect of the children. For example, although he was [W]’s stepfather rather than her father, he still had an obligation to support the mother of his own children, physically and emotionally. If the father did not wish to drive [W] to [R], he could at least have taken some of the burden from the mother by assisting more with his own children. For example, he could have stayed on Sunday nights with his children rather than going back to [L].
The father has obviously put the demands of his work ahead of the needs of his family. In retrospect, the mother and father should have worked out a plan together to enable the mother to finish her diploma and meet her financial needs while ensuring that the children were properly cared for. I do not consider in this day and age that a father can absent himself from the family home from Sunday to Friday, provide inadequate financial support to his family, and then condemn the mother for inadequate parenting. Both parents have a responsibility to ensure that their children are adequately cared for.
p. the allegation of the father’s threatening telephone calls
The mother alleged that in 2008 the father had repeatedly made threatening telephone calls to her and her partner, Mr P, in the early hours of the morning. The mother said that the father threatened to kill her and threatened to put her and Mr P in wheelchairs. Mr P said that the father on one occasion spoke to him for a couple of minutes and said, “You’ve got my whore and my stuff in the shed. If you harm a hair on [X] or [Y]”. Mr P said the father then said that he would kill Mr P and also said that he would put Mr P in a wheelchair.
When these allegations were put to the father, he denied making the threats, saying he had nothing to gain from doing that sort of thing.
He also denied ringing the mother twice and Mr P’s mobile once on
13 July 2008.
There was a substantial delay in the hearing during which the mother subpoenaed the father's telephone records. They clearly showed that someone using the father’s telephone called the mother’s telephone on 13 July 2008 at 21 minutes past midnight, 24 minutes past midnight and 30 minutes past midnight. When confronted with those telephone records, the father said, “At the time [when I last gave evidence] I wasn't aware I made those calls.” He accepted that he had made the calls but said he did not remember making them. He said he had been out drinking that night and had drunk quite a lot. He said that he very rarely went out.
The father also said that he did not recall making a telephone call to the mother at 2:58 am on 27 April 2008 and did not recall making a telephone call to her partner at 3.00 am on 27 April 2008. He said that he did not recall making any threats on any of those occasions. The father said that he did not recall sending a text message to the mother on 3 February 2008 at 2.31 am. However he acknowledged that the telephone records showing calls and text messages at those times were records of his own telephone and did not dispute that the numbers called were those of the mother and her partner.
The father’s initial denials on oath were proved false by the telephone records. It was only when he was confronted with virtually incontrovertible evidence that the father implicitly accepted that he had made the calls.
I accept Mr P’ and the mother’s evidence about the content of the father’s threats. As stated above, I found Mr P to be a credible witness. I accept that Mr P was able to accurately identify the father as the caller. It is fanciful that anyone else would have telephoned from the father’s number. The father was able to dial three telephone numbers in rapid succession on 13 July 2008 and he was able to make a reasonably articulate threat. Accordingly, I do not accept that the father was drunk enough to have no recollection of making the calls on 13 July 2008.
The father offered no reason for not being able to recollect the calls he made on 3 February 2008 and 27 April 2008. I consider that the father did remember making the calls and quite simply lied about not remembering them. On the balance of probabilities, I find that the father made serious threats by telephone against the mother and her partner on the dates specified above.
q. the allegation that the father tailgated the mother
The mother said that the father on several occasions since separation tailgated her and tried to run her off the road. The father denied that allegation, saying he wanted specific dates and times and a description of the vehicle he was travelling in. I did not find the father’s evidence on this matter at all persuasive. In view of all of the evidence, and the father’s untruths on other matters, I accept the mother’s allegations in this regard.
r. the events of 2 February 2008
The father agreed that [X] and [Y] could spend time with their mother on 2 February 2008. That was the first time that they would have seen their mother since the father took them to Canberra in late November 2007. The meeting was ostensibly for [Y]’s birthday, which was in January.
The meeting took place between 10.00 am and 3.30 pm in a park and a café in [B]. The father accepted in cross examination that [X] and [Y] were happy to see their mother and accepted that they had missed her very much.
The mother said that the children were very pleased to see her and sat on her lap and cuddled her. The mother said that while taking [X] and [Y] to the toilet, they told her that they missed her very much and wanted to come home with her. That evidence was unchallenged and I accept it. The mother said that the father remained close by during her time with [X] and [Y] and sent her numerous text messages and made numerous telephone calls to her. That evidence was not challenged and I accept it.
The mother said that, when it was time for her to leave, the girls became very upset and the respondent became aggressive. The mother said that [X] was crying, holding onto the mother’s leg and was asking to be able to go with her. The mother said that she took the girls’ hands to walk away from the father, but he punched her in the chest, knocking her to the ground. The mother said that the police attended and they said that the father should take the girls and leave.
In cross-examination, the mother said that, while she was on the ground, she had hold of [X] and [Y]. The mother agreed that she heard the father say, “Let the girls go” and one of them said to her, “Mummy, let go, and I promise we will go with you another day.” The mother agreed that she was screaming and [X] and [Y] were very upset. The mother agreed that she bit the father on the hand in self defence and drew blood. The mother said in her affidavit that she had been charged as a result of these events and the father had sought an apprehended violence order against her.
The father said that the mother was trying to take [X] and [Y] home with her, rather than returning them to him at the end of the visit. The father made a statement to the police in which he said he and the mother had a tug of war over the children. In oral evidence, the father resiled from his police statement and said it was not really a tug of war. He said he had hold of one of the girls’ arms and the mother had hold of her other arm. The father said he let go because he did not want the children to be harmed.
I prefer the evidence that the father gave to the police. That is, I consider that the parents did have a tug of war involving one of the children. I also accept, based on the father's previous conduct, that he punched the mother in the chest and knocked her to the ground. I note the mother’s admission that she bit the father on the hand and drew blood. I find that the violence ensued when the mother attempted to take [X] and [Y] home with her. The mother denied that, but it seems to me to be the most likely explanation for what happened.
In this incident, [X] and [Y] were exposed to and personally involved in family violence. It was obviously very distressing for both of the children. I consider that both parents were partly to blame for the events of 2 February 2008. Neither of the parents should have allowed matters to escalate to the point of violence.
However, the principal factor leading to the violence was that the mother was attempting to take [X] and [Y] home with her. She should not have done so. If the mother had remained in court on 20 December 2007 or attended court on 9 January 2008, there is little doubt that orders would have been made by consent or by the court for [X] and [Y] to have spent a reasonable amount of time with their mother well before 2 February 2008. The mother’s impulsive behaviour on
20 December 2007, and her refusal to engage in the court process on
9 January 2008, led to the distressing events of 2 February 2008.
Section 60cc(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The family report writer said that:
The children were seen together then interviewed separately.
They presented as lively, open and talkative young girls. They appeared to be quite happy children. They both stated they liked school and they had lots to do in [L]. In response to questions about the current situation and how they felt about things, the girls proceeded with a range of complaints about their mother from not being bathed at her house, to the mother “walking out on the family”. The writer was uncertain where such a statement may have originated, but in discussion it was clear that the children held a level of resentment towards their mother and carried a sense that their mother had not been such a central support for them prior to separation. The children stated clearly that they missed [T] and [W] and spoke of them in warm terms, and were a little more equivocal about [U] (who had moved away prior to separation) as it appeared that [U] may have been less nurturing at times.
The children stated they were happy living where they were, they had friends and lots to do and loved their father and “nan”. They also had time with “pop” but he was not around so much as he worked. They described their daily routine, including “walking around the corner to school” and if dad was late from work, “nan helps out dad a lot”. The girls appeared to express a strong sense of feeling secure in this routine.
The girls also appeared to carry some anxiety still regarding any interaction between their parents and had vivid memories of the incident in February. They described yelling at their mother to let them go and they were fearful that they would be taken from their father. [Y]’s recollection in particular was that her mother was “scary – especially at times when she gets angry”. [Y] also talked about being looked after by [T] when their father was away during the week.
In individual interviews, [Y] described the fractures she appeared to feel in the family. It was concerning in part as she appeared to have a very fixed and almost ‘adultified’ view of the family circumstances. She described her father as loving them most and that her mother “split the family and that”. She appeared to blame her mother for “running off to [Mr P]” and that [U], [W] and [T] went to live elsewhere and “me and [X] went with our dad”.
In an exercise about ‘feeling’ states, [Y] chose cards that reflected feeling happy. She chose similar cards for her father. She chose angry cards to reflect her feelings about her mother. In a further exercise about family wishes, [Y] expressed similar themes and it appeared the anger/hurt she identified towards her mother was entrenched. When questioned if anybody talked about these things at home, she replied “nobody”.
[X] described feeling “worried” and “scared” at times about the handover and this appears to be tied up with the incident in February of which both girls have vivid memories and still pervades their thinking at times. It appears that [X] does not carry the anger that [Y] does, but still has a sense of insecurity and concern with her interactions with her mother.
In the ‘feeling’ card exercise [X] chose “kinda happy” cards for herself (“most of the time”) and “kinda happy” and “cuddly” cards for her mother and “quiet” and “warm” cards for her father. When queried about what it would be like if she was living with their mother, [X] clearly was concerned although she appeared still emotionally close to her mother. It seemed the combination of the household worried [X] and she did not have any picture of living there. When questioned about her views and whether these were discussed at home, [X] stated that her father didn’t say much but sometimes her nan “keeps going on and on” until she has to tell her to stop.
The father submitted that [X] and [Y] had expressed a clear wish to remain living with their father because they told the family report writer that they were happy living where they were. I do not consider that statement to be a clear pronouncement about their wishes. [X] and [Y] had been living with their father for about seven months when they were interviewed for the family reports. They simply said that they were happy there. They did not say explicitly whether they would be any more or any less happy living somewhere else.
The father also submitted that the children expressed a wish to remain living with their father during the incident on 2 February 2008, when they said they wanted to go with their father. That submission overstates the evidence. One of them said, “Mummy, let go, and I promise we will go with you another day.” In my view, in the traumatic situation they were involved in, [X] or [Y] was simply expressing a wish to go with her father on that day, as she was accustomed to doing, on the basis that she would spend time with her mother on another day. The statement does not strike me as a considered statement of [X] or [Y]’s long term preferences. Similarly, the statement that “they were fearful that they would be taken from their father” seems to me to relate specifically to how [X] and [Y] were feeling on 2 February 2008.
However, in the family report interviews, [Y] did express some anger towards her mother and said she felt scared of the mother when she gets angry. Additionally, [X] said that she was worried and scared about handover and still felt some insecurity and concern about her interactions with her mother. [X] had concerns about living with her mother and seemed worried about the combination of people in the mother’s household.
Overall, the passage set out above from the family report indicates that [X] and [Y] are happy where they are and have reservations about their mother. Some of that is no doubt based on the fact that [X] and [Y] had spent relatively little time with her in the preceding seven months, and on at least one occasion, their time with their mother was memorable for the violence and distress that occurred.
The mother said that [X] and [Y] had expressed a wish to her that they would like to live with her. As stated above, I accept that [X] and [Y] have said that to the mother on at least one occasion. However, I do not consider that [X] and [Y] are mature enough for the court to place any great weight on their wishes. They are quite young, and have been through a very difficult time in the last 12 to 18 months. They are unlikely to have a reasonable perspective on their long term interests.
Section 60cc(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The family report writer made the following observations about the interaction between the mother, [W], [U], [X] and [Y]:
The children were observed with the mother and with [W] and [U]. On seeing them [Y] ran to [W], pointedly avoiding her mother. The mother managed this well and did not force matters with [Y]. Later both [X] and [Y] walked with the mother and with [W] and [U].
The family was observed in a park where they played and talked together. The children responded to the mother’s interaction and were happily cuddled and involved in different games. The children also happily played with [W] and [U] in different combinations.
The children appeared relaxed, involved and enjoying their time. Towards the end of the day [Y] became overexcited and the mother was quick to place boundaries on her behaviour.
In terms of transition as the mother was leaving, both children (and mother) appeared to manage such in a fairly practical and matter of fact manner. The children easily reconnected with their father.
The family report writer made the following observations about the interaction between the father and [X] and [Y]:
The father and children arrived early. The father had food and drinks and so on for the children and was attentive and thoughtful about their needs. In interaction he appeared warm yet appropriately assertive.
The children were responsive and appeared to be emotionally attached. They would turn to the father as well as each other in interactions.
In a game together the father was inclusive and mindful of the children. He appeared to be attuned and responsive and there was a warm and comfortable quality to the interaction. The children appeared happy and relaxed in the fathers (sic) company often referring to him in affectionate ways.
I consider that [X] and [Y]’s relationships with both of their parents are basically sound, although, from the family report interviews, [X] and [Y] seemed to be more comfortable with their father than their mother. It seems that [X] and [Y] continue to have a good relationship with [T]. The father has arranged for them all to spend time together, although [T] is now living with his own father. It also seems that [X] and [Y] continue to have a good relationship with [W].
The father made various allegations about [U]’s behaviour towards [Y]. Those allegations were not specifically put to the mother. However, she did say that, in answer to the question, “[Y] and [U] have real difficulties?”:
They do at times, but I think anybody does. Everybody has difficulties with [Y] at times, too. I don't think it is exceptionally high or unusual or different.
The family report observations did not suggest anything as serious as the father had claimed in the relationship between [U] and [Y]. Accordingly, I accept the mother’s description of their relationship.
Since moving to [L], [X] and [Y] have spent a good deal of time with their paternal grandparents. The father works full time. The paternal grandmother, who is 79 years old, said that the father brings [X] and [Y] to her house at about 6.30 am. They are in their pyjamas and dressing gowns and usually they go back to bed at their grandparents’ house. The paternal grandmother said that, usually, the children did not go back to sleep. The paternal grandmother gets them up at 7.45 am, gives them breakfast and they walk to school at 8.30 am.
The paternal grandmother said that [X] and [Y] return to her house after school and remain there until the father collects them at about 5.45 pm. The paternal grandmother said that, in the afternoon, the children watched television, played outside, and read stories to her. The paternal grandmother said that [X] and [Y] go home with their father and he cooks their tea. The paternal grandmother’s evidence was not challenged and I accept it.
The paternal grandfather, who is 75 years old, said that he works from 8.30 am until 5.30 pm in the garage he owns. He spends a bit of time with [X] and [Y] in the afternoons before their father collects them. He said they were usually watching television or playing with their bikes when he got home, and they would cuddle him and tell him they loved him. This evidence was not disputed and I accept it. Accordingly, I accept that [X] and [Y] have a good relationship with both of their paternal grandparents.
Mr P has known the mother for 13 years and knew [X] and [Y] in [C] since they were very young. Mr P brought up his two children, [V], aged 20, and [Z], aged 18, as a single parent. [V] now lives elsewhere with her four year old daughter and [Z] lives at home with Mr P. Mr P said [X] and [Y] are comfortable with him. The mother said the children get on well with Mr P.
The father alleged that [X] and [Y] were not comfortable with Mr P because, among other things, he had sex with the mother while the bedroom door was open and while [X] and [Y] were nearby. Mr P denied that allegation, saying they were very private people. I do not accept the father’s allegations. As stated, I found Mr P to be a credible witness.
The father alleged that Mr P and the mother drink excessively. Mr P conceded that he and the mother would have one or two drinks of an evening. I accept that evidence. However, I also accept that if the mother and Mr P did drink to excess on any occasion, it may well be enough to make [X] and [Y] uncomfortable with them.
Neither Mr P nor [Z] participated in the family report interviews. That was unfortunate. The court would have been assisted by the family report writer’s observations of the interaction between [X] and [Y], on the one hand, and Mr P and [Z], on the other. However, on the material available, I accept that Mr P and [Z] have reasonably good relationships with [X] and [Y], within the confines of the somewhat limited contact that they have had.
Section 60cc(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The mother’s primary contention was that, notwithstanding the stability that [X] and [Y] now have with their father, he had demonstrated an unwillingness to facilitate and encourage a close and continuing relationship between the mother and [X] and [Y] and was likely to continue to be unwilling to facilitate and encourage such a relationship in the future. The mother contended that the consequences would be damaging for [X] and [Y].
The mother argued that the father’s attitude towards [X] and [Y] spending time with her was partly because he had unresolved issues about the ending of his relationship with the mother. It is clear that, at least as of July 2008, the father had not resolved those issues. The father’s own mother said that the father was very upset about the relationship ending. He made threatening telephone calls to the mother and her new partner in February, April and July 2008. He has also tailgated the mother. His tone in the communication book up to May 2008 was preaching and controlling.
It seems likely that the relationship between the mother and father had been tenuous for some time before it ended. The father and mother did not cohabit except on weekends after June 2003. The mother said that, when he was at home, the father was depressed, distant and difficult to be with. Nevertheless, the father understandably found it very confronting that the mother began a relationship with Mr P so soon after the relationship between the mother and the father ended, if not before.
This perception may have made it difficult for the father to see that [X] and [Y] have a basic need to have a meaningful relationship with their mother. It may also have made it difficult for the father to see that, if [X] and [Y] are to have a meaningful relationship with their mother, he, as their father, must give them positive encouragement to look forward to and enjoy their time with their mother and he must tell them positive things about their mother.
The father’s actions have suggested in a number of ways that he has not adequately facilitated and encouraged a close and continuing relationship between [X] and [Y] and their mother. He removed [X] and [Y] from the mother, although she was their primary carer. He said he was acting protectively. However, [X] and [Y] did not see their mother at all from about 29 November 2007 until 2 February 2008. The father offered the mother some time with the children at the court hearing on 20 December 2007. However, the father on that occasion also alleged that the mother took drugs and had threatened to kill herself and the children. Those allegations were ultimately not substantiated. The mother considered that the time the father offered was wholly inadequate. She was understandably very upset. The mother left court without orders being made and without any arrangement being made for her to spend time with the children. This was partly the mother’s own fault. If the mother had exercised more self-restraint on 20 December 2007, [X] and [Y] would have been able to spend at least some time with her, even if it was too little in the mother’s view. Alternatively, an order may well have been made for [X] and [Y] to return to live with their mother.
The mother maintained that the father offered the mother time with the children over the Christmas period at times when he knew she was working. I accept the mother’s evidence on this point. However, the process of negotiation involves different proposals being put until an acceptable compromise is reached. If negotiation fails, the matter can be resolved by the court. Unfortunately, the mother did not participate in either a negotiation or the court process on 20 December 2007 or on 9 January 2008.
The mother said that during a telephone conversation, [Y] told the mother that the father had said that the mother was very sick and could not look after [X] and [Y] and had said that the mother was going to jail. This evidence was not challenged and I accept it. It indicates that the father, on one occasion at least, undermined the relationship between [X] and [Y] and their mother.
The father sought orders to reduce [X] and [Y]’s telephone contact with their mother from three times a week to two. He said three times a week was disruptive. The family report writer was opposed to any reduction in the telephone time spent by [X] and [Y] with their mother. The father’s wish to reduce the telephone time may be symptomatic of his unwillingness to facilitate and encourage a close and continuing relationship between [X] and [Y] and their mother. There were also suggestions in the family report that [Y] had an adultified view of events and that [Y] had been given a negative view of her mother, though the source of that view could not be identified.
The family report writer did not detect in the father a deliberate campaign to alienate [X] and [Y] from their mother. However, I consider overall that the father could have done more to facilitate and encourage a close and continuing relationship between [X] and [Y] and their mother.
It was not suggested that the mother has failed to encourage and facilitate a close and continuing relationship between [X] and [Y] and their father.
Section 60cc(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There have been dramatic changes in [X] and [Y]’s circumstances in the last year or so. They have moved from [C], being the community in which they had lived virtually all their conscious lives, to [L]. They have started at a new school and no doubt have had to make new friends. They have ceased to live with their mother, their step-brother [T], and their step-sisters, [U] and [W] and have begun to live with only their father, with assistance from the paternal grandparents.
If [X] and [Y] were to now live with their mother, they would have to re-establish themselves in a new town, namely, [E], and a new school. They would have to make new friends again. They would again be living with [U], and, on occasion, [W], but not with [T]. They would also be living with Mr P and his 18 year old son, [Z]. [X] and [Y] would have to adjust to being without their father and the paternal grandparents on a day to day basis.
The family report writer considered that, if the court were satisfied about the mother’s basic ability to care for [X] and [Y]:
it could be argued that the children would be likely to adapt to the different care and lifestyle available in either household and manage relatively well, so long as they were having sufficient time in the other.
This is not an unequivocal statement that [X] and [Y] would readily adapt to living with their mother in [E] 12 days out of 14, but it does suggest that, like most children, they are reasonably adaptable.
I consider that [X] and [Y] would be able to adapt over time to moving to [E] to live with their mother, Mr P, [Z] and [U]. However, I consider that such an upheaval would place them under considerable stress in the short term.
Section 60cc(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are considerable practical difficulties in [X] and [Y] spending time with whichever parent they are not living with. The father lives in [L] and the mother lives in [E]. The travelling time is about one hour and 40 minutes. The case was argued on the basis that [X] and [Y] had to live with one parent or the other for 12 days a fortnight and half school holidays. However, it would perhaps be possible for the parent with whom [X] and [Y] are not living to attend special events, such as school concerts and sports days, from time to time.
Section 60cc(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The mother is not presently working, though she may do so in the future. She is living with Mr P and appears to be financially supported by him. There was an issue about her Centrelink payments but it was not fully explored and I make no findings about it. The mother now has ample time to care properly for the children. In general terms, I consider that the mother is well able to provide for the needs of [X] and [Y], including their emotional and intellectual needs. She has done so for most of their lives. The mother seemed to me to be a warm, engaging and energetic person.
The areas where the mother failed to achieve an acceptable standard of parenting in the second half of 2007 were largely caused by extreme pressures that no longer apply, and by a lack of proper support from the father. It seems to me that the mother is now in a relationship that provides her with both emotional and financial support. Mr P presented in the witness box as a warm, open and engaging man.
On the other hand, even in 2008, the mother has demonstrated impulsive behaviour, a lack of self-restraint and a reluctance to engage in court processes. Overall, however, I consider that there is a low risk that the mother would not properly parent [X] and [Y] in the future, unless she again found herself in very difficult circumstances comparable to those that she experienced towards the end of 2007.
The father seems to be well able to provide for the needs of [X] and [Y]. The family report writer noted that the father is attuned and responsive to [X] and [Y], and there was warmth in their interactions. The family report writer noted that the children were happy, relaxed and well cared for by the father. However, the father is continuing to work full time. He would be not be able to care so well for the children if it were not for the physical support he receives from his mother. She is 79 years old. Her health is good enough for her to play golf once a week, although her hearing is failing her somewhat. While the paternal grandmother remains fit and well, she and the father are able to meet [X] and [Y]’s needs. The paternal grandfather is a little younger, and also well, but I did not understand him to play a large part in the care of the children.
Section 60cc(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There is nothing of any particular note in relation to this factor.
Section 60cc(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60cc(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother said that after June 2003, the father did not financially support her or [T], [U] or [W]. She seemed to imply that the father did financially support [X] and [Y], at least to some extent, during their parents’ relationship. Since 2004, the father was absent from the family home from Sunday evening to Friday evening every week, and left all of the child care during that time to the mother. I do not regard this as providing proper physical and emotional support to his children and their mother. The father did not explain why he could not have worked closer to home. Since separation, the father has capably fulfilled his responsibilities as a parent, except perhaps in relation to facilitating and encouraging a close and continuing relationship between [X] and [Y] and their mother.
The mother has also failed in some of her responsibilities as a parent, as described above. However, I accept that the mother was trying to do her best in very difficult circumstances. The mother overall showed a great deal of energy and determination. However, in the process, she made some unfortunate errors of judgment.
Section 60cc(3)(j) any family violence involving the child or a member of the child’s family
The incidents of family violence in this case have been addressed above.
Section 60cc(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
On 24 June 2008, the father obtained an apprehended violence order on a final basis against the mother arising from the events of
2 February 2008. The proceeding had been adjourned a number of times at the mother's request. She did not attend the final hearing.
Section 60cc(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. Litigation is very stressful for all concerned.
Section 60cc(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances that I consider to be relevant in this case.
Equal shared parental responsibility
Section 61da of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.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.
The presumption of equal shared parental responsibility does not apply in this case, as there has been family violence. However, it was not disputed, and I agree, that it is in the best interests of [X] and [Y] that their parents have equal shared parental responsibility for them.
Equal or substantial and significant time with each parent
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent.
It provides as follows:1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(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 (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
In the present case, it was common ground that the distance between the parents’ homes prevents [X] and [Y] from spending more than alternate weekends and half school holidays with the parent with whom they are not living. Accordingly, there is no real scope for [X] and [Y] to spend equal or substantial and significant time with each parent. That is very unfortunate. I understand that the family report writer would have supported a more equal sharing of time if that had been feasible. I, also, would have been inclined to make orders for a more equal sharing of time if the distance between the parents permitted.
Conclusion
The mother certainly made some mistakes in the latter part of 2007. However, the stresses that led to those mistakes being made no longer exist. The mother is now financially supported by her new partner, who seems to be a caring and emotionally available man. The mother is not presently working or studying and has ample time to adequately care for her children.
The question in relation to the mother is whether there is a significant risk that the errors of judgment she made in 2007 will be repeated in the future in relation to [X] and [Y]. I think that the mother has learned a very hard lesson. I think that she will be much more careful in the future, unless she should again find herself in as difficult a situation as she was in towards the end of 2007.
The principal factors in favour of [X] and [Y] remaining with their father are that he is caring for them well and they will have stability and continuity if they remain with him. However, it may be thought that the father engineered that situation by taking [X] and [Y] from their mother, their primary carer, and not returning them. The mother did not assist her cause on 20 December 2007, by leaving court without orders being made, on 9 January 2008, by not attending court, or on
2 February 2008, by engaging in a physical fight with the father. The mother’s lack of self-restraint has cost her dearly. The father, on the other hand, has made the most of his opportunity. He has cared for [X] and [Y] well and has strengthened his bonds with them. Whatever the rights and wrongs of how the present situation came about, the court’s role is to make the orders that are in the best interests of [X] and [Y] for the future.
While the situation with the father is stable at the moment, it is contingent on the paternal grandmother remaining well enough to continue to fulfil her key role in the care of [X] and [Y]. Additionally, I have some doubts about the father’s willingness into the future to facilitate and encourage a close and continuing relationship between [X] and [Y] and their mother into the future.
However, taking into account all of the evidence and all of the factors specified in the Act, I consider that it is in the best interests of [X] and [Y] that they remain living primarily with their father. He is caring for them well. It seems to me that [X] and [Y] do need the continuity and stability that their father is giving them. Moving to their mother’s home would involve another major upheaval, requiring [X] and [Y] to adjust yet again to a new school, to make new friends, and to adjust to living predominantly with the mother’s new partner and his teenage son.
Having said that, I consider that the mother and Mr P have a lot to offer [X] and [Y]. They both seem to me to be warm, engaging and energetic people. If they lived closer to the father, I would have had no hesitation in providing for [X] and [Y] to have a more equally shared care arrangement with both of their parents.
As to the father not adequately encouraging a close and continuing relationship between [X] and [Y] and their mother, I would expect the father to improve in this regard once the litigation is finalised and with the passage of time. To assist with that process, it is in the best interests of [X] and [Y], that both parties, but especially the father, do a post separation parenting course. Hopefully, it will help him to understand that [X] and [Y] spending time with their mother is for [X] and [Y]’s benefit, not for the mother’s benefit.
In relation to the frequency of telephone contact, I consider that it is in [X] and [Y]’s best interests that they have telephone contact three times a week with their mother, when they are not with her. Although that may involve some inconvenience to the father, it is necessary to foster [X] and [Y] having a close relationship with their mother. I consider that it is more appropriate for changeover to occur at a post office than a hotel.
There will be orders accordingly.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Alexandra Sidoti
Date: 17 December 2008
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