Sohumba and Egan

[2008] FamCA 778

FAMILY COURT OF AUSTRALIA

SOHUMBA & EGAN [2008] FamCA 778

FAMILY LAW – CHILDREN - Parenting – maternal aunt seeking parenting orders – central issue of alleged family violence and physical discipline in the father’s household – the capacity of the father to meet the health and educational needs of the children – views expressed by the children as to with whom they wish to live – the nature of the relationship between the children and the parties – the willingness of each party to facilitate a close and continuing relationship between the children and the other party – whether equal shared parental responsibility is possible - need for the children to maintain link with their cultural heritage.

Family Law Act 1975 (Cth)

APPLICANT: Mr Sohumba

RESPONDENT: Ms M Egan

2^nd RESPONDENT: Ms L Egan

INDEPENDENT CHILDREN’S LAWYER: Ms Kate Rafton

FILE NUMBER: PAF 1948 of 2005

DATE DELIVERED: 8 September 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Watts J

HEARING DATE: 29 - 31.10.2007; 2.11.2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gibbons

SOLICITOR FOR THE APPLICANT: Collins & Thompson

COUNSEL FOR THE RESPONDENT: Mr Schroder

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Nash

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Harman & Co

Orders

1. Mr Sohumba (“the Father”) and Ms M Egan (“the Maternal Aunt”) have equal shared parental responsibility for the children J born … November, 1994 and N born … July, 1996 (“the children”).

2. The children live with the Father.

3. The maternal Aunt spend time with the children as follows:

   3.1.each alternate weekend; such weekends to be co-ordinated if possible so that they are not the weekends when the child S spends time with her father pursuant to the orders made on 29 October 2007 by consent in proceedings SYF …/1997.

   3.2.during each NSW school holiday period with the exception of a period of four weeks that the Father is able to spend time and personally supervise the children, and such time to be coordinated if possible so that these times are not times when S spends time with her father.

4. The Maternal Aunt be permitted to take the children to any NAIDOC celebrations whenever they are held.

5. Each party do all things and sign all documents necessary to authorise and direct any School attended by the Children or either of them to discuss with each of the parties the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all activities at the school or connected with the school.

6. Both the Father and the Maternal Aunt are permitted to attend any school function or sporting function to which parents are generally invited.

7. Each party shall be permitted to attend any medical and/or specialist medical appointments to which the children or each of them are required to attend.

8. The party with whom J lives shall provide to the other party at the commencement of any period of time any medication that J is required to take during that period of time.

9. Each party shall ensure, whilst in their respective care, that J is administered with and takes any medication with which he has been prescribed.

10. Both the Father and the Maternal Aunt ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to the children or either of them and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the children if hospitalised or confined to bed.

11. Each party shall keep the other advised at all times of their residential address and residential telephone number and emergency contact number.

12. Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the said children or either of them.

13. The father and Ms H be restrained from physically disciplining the children or either of them.

14. The application by the father for an adjournment of the case is dismissed. 

15. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 1948 of 2005

MR SOHUMBA

Applicant

And

MS M EGAN

Respondent

MS L EGAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings were commenced by the maternal aunt, Ms M Egan by an Application filed on 9 December 2005 seeking orders in respect of sons J born in November 1994 (aged 12 years) and N born in July 1996 (aged 11 years).  J and N are the two younger children of the relationship between the mother (who takes no active part in these proceedings) and the father Mr Sohumba.

2. In separate proceedings, another maternal aunt, C Egan, filed an Application on 16 July 2006 seeking final orders in respect to S born in January 1994 (aged 14 years). S is the eldest child of the relationship between the mother and the father. 

3. The two sets of proceedings were joined in July 2006 and listed for hearing together before me. 

4. C Egan and the father reached an agreement as to what orders should be made in relation to S.  Consent orders were made on 29 October 2007 (which are set out in full below).

5. The central issues in the case involving J and N are about the level of family violence in the father’s household, particularly the level of physical mistreatment of the children; the capacity of the father to meet the education and health needs of J and the expressed views of the children.

Other children

1. The mother has three other children who are not the father’s children.  These children, Y who is older than S, and T and B who are younger than N, live with the maternal aunt M Egan, but are not the subject of these proceedings.

2. The mother has recently given birth to another child who is currently in her full-time care.

3. The father re-partnered with Ms H (“the paternal step-mother”) in 1997 and continues to reside in a de facto relationship with her. 

4. There is one child of the relationship between the father and the paternal step-mother, namely D born in February 1997 (aged 10 years).  D is not the subject of these proceedings. 

APPLICATIONS

Applicant

1. In final submissions counsel for the father supported and sought orders in the terms of the minute of order proposed by the Independent Children’s Lawyer (exhibit “P” set out below).

2. The father confirmed in oral evidence that his application was that J and N live with him and spend time with their maternal aunt every second weekend.  During oral evidence he sought week about during school holidays but now supports the order sought by the Independent Children's Lawyer.  The timing of J and N being with the maternal aunt would be so S could be with J and N during the time that they were with him.

Respondent (maternal aunt)

1. The maternal aunt M sought the following orders in a Response filed 25 September 2007:

   1.That all previous orders relating to the children namely, [J] born […].11.1994 and [N] born […].7.96 be discharged.

   2.That the father and maternal aunt have equal shared parental responsibility for the children which includes the making of major long term decisions in relation to but not limited to the education, health, religion and culture.

   3.That the children live with the maternal aunt [M Egan].

   4.That the father spend time with the children as follows:

   a.Each alternate weekend from Friday 5pm until Sunday 5pm;

   b.For half of each NSW gazetted school holiday period as agreed between the parties but failing such agreement, for the first half of each school holiday in odd numbered years and the second half of each school holiday in event numbered years.

   c.At Christmas each alternate even year from 5pm Christmas Eve until 2pm Christmas Day.

   d.At Christmas each alternate odd year from 2pm Christmas Day until 5pm Boxing Day.

   e.On each of the children’s birthdays for 2 hours as agreed and if no agreement from 5pm until 7pm.

   f.For Father’s Day weekend each year.

   g.By telephone on a liberal basis.

   5.That the time the children spend with the father in accordance with Order 4(a) is suspended during NSW school holiday periods, and recommences the first weekend after school resumes for each school term.

   6.That neither party is to denigrate the other or their family in the presence of or within the hearing of the children.

   7.That the father and his partner be restrained from physically disciplining the named children.

   8.That the father and maternal aunt are to inform each other as soon as practicable if the children are unwell and or require medical assistance.

   9.That the father and maternal aunt are to keep each other advised of their home address and telephone numbers at all times.

   10.For the purpose of these orders the father and maternal aunt or their agents are to deliver and collect the children from the railway station at [E] or place as agreed between them.

   11.The maternal aunt is to provide a copy of these orders to any school that the children attend to enable the father to attend at the children’s school for any child related event and for him to organise with the school to receive separately notices of school functions, parent teacher interviews and progress reports of the children.

   12.The maternal aunt is to add the children to her Medicare card in order to obtain medical service for the children if it is required when the children live with her.

Independent Children's Lawyer

1. In final submissions the Independent Children’s Lawyer submitted that the Court should make orders in accordance with exhibit “P” in the following terms:

   1.That the Father and Maternal Aunt have equal shared parental responsibility for the children [J] born […] November, 1994 and [N] born […] July, 1996.

   2.That the children live with the Father.

   3.That the maternal Aunt spend time with the children as follows:

   3.1Each alternate weekend;

   3.2During each NSW school holiday period with the exception of a period of four weeks that the Father is able to spend time and personally supervise the children.

   4.That the Maternal Aunt be permitted to take the children to any NAIDOC celebrations whenever they are held.

   5.That each party do all things and sign all documents necessary to authorise and direct any School attended by the Children or either of them to discuss with each of the parties the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all activities at the school or connected with the school.

   6.That both the Father and the Maternal Aunt are permitted to attend any school function or sporting function in which parents are generally invited to.

   7.That each party shall be permitted to attend any medical and/or specialist medical appointments to which the children or each of them are required to attend.

   8.That the party with whom [J] lives shall provide to the other party at the commencement of any period of time any mediation that [J] is required to take during that period of time.

   9.       That each party shall ensure, whilst in their respective care, that [J] is administered with and takes any medication to which he has been prescribed.

   10.    That both the Father and the Maternal Aunt ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to the children or either of them and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the children if hospitalised or confined to bed.

   11.    That each party shall keep the other advised at all times of their residential address and residential telephone number and emergency contact number.

   12.    That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the said children or either of them.

   13.That the father and [the stepmother Ms H] be restrained from physically disciplining the children or either of them.

2. In the alternative, the Independent Children’s Lawyer submitted that in the event that the Court concluded that it was in the best interests of J and N not to live with their father, then orders should be made in accordance with exhibit “Q” in the following terms:

   1.      That the Father and Maternal Aunt have equal shared parental responsibility for the children [J] born […] November, 1994 and [N] born […] July, 1996.

   2.       That the children live with the Maternal Aunt.

   3.       That the Father spend time with the children as follows:

   1.1three weekends out of every four;

   1.2For four weeks during the year during school holiday periods provided the Father is available to care for the children.

   4.       That the Maternal Aunt be permitted to take the children to any NAIDOC celebrations whenever they held [sic] providing she gives the Father 1 months notice.

   5.       That each party shall do all things and sign all documents necessary to authorise and direct any School attended by the Children or either of them to discuss with each of the parties the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all activities at the school or connected with the school.

   6.       That both the Father and the Maternal Aunt be permitted to attend any school function or sporting function in which parents are generally invited to.

   7.       That each party be permitted to attend any medical and/or specialist medical appointments which the children or each of them attend.

   8.       That the party with whom J lives shall provide to the other party at the commencement of any period of time any mediation that J is required to take during that period.

   9.       That each party shall ensure, whilst in their respective care, that J is administered with and takes any medication which he has been prescribed.

   10.    That both the Father and the Maternal Aunt ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to the children or either of them and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the children if hospitalised or confined to bed.

   11.    That each party shall keep the other advised at all times of their residential address and residential telephone number and emergency contact number.

   12.    That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the said children or either of them.

   13.    That the father and [the stepmother Ms H] be restrained from physically disciplining the children or either of them.

SHORT HISTORY

1. The parents lived together up until about August 1995.  The father says that at that time he left the home he was living in with the mother at G.

2. In 1997, due to the mother’s drug addiction, the three children, S, J and N, came to live with their father.

3. At approximately this time the father commenced to cohabit with the stepmother. 

4. In 1999 orders were made for S to have contact with C Egan. 

5. In June 2002, consent orders were made allowing the maternal aunt to spend time with the children.  The aunt ensured the children maintained a relationship with the maternal family. 

6. In August 2005, DoCS interviewed the maternal aunt and the children.  S, J and N disclosed physical discipline and abuse by the father and his partner, the stepmother.  DoCS did not take the investigation further at that stage. 

7. In October 2005, the eldest child S reported a physical assault on her by the father’s partner, the stepmother. Criminal proceedings were commenced and S by consent moved in with the maternal aunt C Egan.  DoCs were involved but no orders were made confirming S’s placement with her Aunt C.

8. Due to concerns about discipline in the father’s household, in December 2005, the maternal aunt filed an Application for Final Orders that the younger children, J and N, live with her and spend time with their father.

9. In June 2006, C Egan filed an Application for Final Orders that the child S live with her and spend time with her father. 

PREVIOUS ORDERS

1. In 1997 the father obtained an order on an undefended basis that he have residence of the children. 

2. On 29 January 1999 orders were made in the following terms:

   1.That the three children, [S] born […].1.94, [J] born […].11.94 and [N] born […].7.96 reside with the father and he have sole responsibility for their day to day care, welfare and development while they are resident with him.

   2.That the child [S] have contact with [C Egan] as follows:-

   (a)Each alternate weekend from 5pm Friday until 5pm on the following Sunday with [C Egan] to collect the child from [H] Railway Station and to return her there at the conclusion of contact;

   (b)Telephone contact each Wednesday between the hours of 5pm and 7pm;

   (c)Half the school holidays; half of NAIDOC week each year and up to three hours on the child’s birthday;

   (d)And in relation to Christmas Day contact from 2pm until 6pm on Christmas Day.

   3.Other contact as may be agreed upon between the parties.

3. On 14 June 2002 orders were made in the following terms:

   1.That the children namely [J] born […].11.1994 and [N] born […].7.1996 have contact with their maternal aunty [M Egan] as follows:-

   1.1Each alternative weekend commencing on the weekend on 28.6.2002 from 5.00pm Friday until 5.00pm Sunday.

   1.2For one half of the July and September/October school holidays.

   1.3For a two week period during Christmas school holidays.

   1.4For one half of Christmas Day commencing from 2.00pm on 25.12.2002.

   1.5At such other times as the parties may otherwise agree.

   2.That for the purposes of all contact, pursuant to order 1, the aunty [C Egan], or the applicant, shall collect the children from the father, or his nominee, at the commencement of contact and they shall return the children to the father, or his nominee, at the conclusion of contact.

   3.In the event that the children [J] and [N] are engaged in sport on contact weekends then the father shall be permitted to take the child/children to sport and the contact shall not commence until the father delivers the child/children to the applicant at her residential address at the earliest possible time after the conclusion of the child/children’s sporting event.

   4.That the applicant shall have contact with the children on the weekend between 16.3.2002 and 20.3.2002 in order that the children can celebrate the birthdays of their half sister and half brother.

   5.In the event that the respondent’s child [D’s] birthday falls in a contact week for the applicant then the applicant shall forgo contact on that week.

   6.That all parties keep each other advised of their mobile phone contact numbers and for the purpose of the phone contact the mobile shall be left on.

   7.That the father shall keep the applicant informed of any milestones in the children’s schooling and sporting achievements, permitting the applicant and her family the opportunity to attend school only important functions such as open days and end of year concerts and any sporting events of major interest.

   8.That the father shall keep the applicant informed of any event described in order 7 and at the applicant’s expense shall provide her with school photos.

   9.In the event of any important family functions of the applicant, such as funerals or functions relating to half siblings, and providing proper notice by the applicant to the father in give [sic] then the father shall make the children available to the applicant.

   10.That the father keep the applicant informed of any relevant health needs or issues and provide her with any medication necessary for the children’s care.

   11.That the father do all things necessary to encourage and promote awareness of the children’s Aboriginality and likewise the applicant shall respect the father’s own cultural heritage.

1. On 22 December 2005 orders were made in the following terms:

   1.That order 1.3 and 1.4 of the orders made 14.6.2002 be varied so that:

   1.1The applicant shall have contact with the children from 2pm on 25.12.2005 until 5pm 8.1.06;

   1.2The aunt to resume her alternative weekend contact with the first weekend contact commencing 20.1.2006.

   2.That order 6 of the orders be varied so that all parties keep each other advised of their mobile (if available) and fixed landline contact numbers.  For this purpose each party take all necessary steps to maintain an operating service and leave the phone numbers on at all times.  The phone contact is for the children to be able to contact either party or either party to contact the other in the event of an emergency in relation to the children.

   3.Without admission the father be restrained from physically disciplining the children and will restrain any other person from doing so.

   4.That both parties not denigrate each other or discuss the family law proceedings or criminal proceedings in the presence of or within the hearing of the children (relating to [the stepmother] and currently pending in the Hornsby Local Court).

   5.The father contact the […] Child and Family Health Service within 21 days to attend and complete a parenting course as directed by the centre and that contains or deals with methods of disciplining children other than by physical means or any other course nominated by […] Department of Community Services.

   6.That a separate representative be appointed for [J] and [N].

   7.That the father shall keep the applicant informed of any milestones in the children’s schooling and sporting achievements, permitting the applicant and her family the opportunity to attend school only important functions such as open days and end of  year concerts and any sporting events of major interest.

   8.That all outstanding applications and documents produced on subpoena be transferred to the Family Court at Parramatta.

   9.That in all other respects the orders of the 12.6.2002 continue until further order.

2. On 29 October 2007 consent orders were made in proceedings 2843/1997 between the father and C Egan in the following terms:

   1.That the orders made by the Family Court of Australia at Sydney on the 29^th January 1999 (SYF […] of 1997) in respect to the child [S] born […] January 1994 (“[S]”) be discharged.

   2.That pursuant to Section 61D [C Egan] (“the maternal aunt”) and [Mr Sohumba] (“the father”) shall have the joint parental responsibility for [S] in relation to the care welfare and development of a long term nature involving the child and to include, but not limited to, issues about:

   (a)The education of the child both current and future;

   (b)The religion of the child;

   (c)The health of the child; and

   (d)Any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.

   3.That [S] live with the maternal aunt.

   4.That [S] spend time with the father:

   (a)Each alternate weekend from 6.30 pm Friday to 5.00 pm Sunday (with such time, if possible, to coincide with the weekend the children [J] and [N] are with the father).

   (b)One half of the State school holidays as agreed between the maternal aunt and the father (such time, if possible, to coincide with the holiday periods the children [J] and [N] are with the father) and in default, first half in even years, second half in odd years.

   (c)On Father’s Day in each year from 9.00 am to 5.00 pm.

   (d)At such other times as agreed between the maternal aunt and the father.  Agreement to be in writing.

   6.That [S] communicate with her father as regularly as possible via telephone, between 6.00 pm and 9.00 pm with her father telephoning her.

   7.That [S], [J] and [N] communicate with each other as regularly as possible via telephone.

   8.That the maternal aunt shall have the sole responsibility for making decisions about [S’s] day to day care welfare and development during the times that [S] spends time with her.

   9.That the father have the sole responsibility for making decisions about [S’s] day to day care welfare and development during the times [S] spends time with him.

   10.That the maternal aunt shall refrain from making critical of derogative remarks about the father or members of his family in the presence of or within the hearing of [S] and that the maternal aunt shall do all things reasonably necessary to ensure that no other person makes any critical or derogative remarks about the father or members of his family in the presence of or within the hearing of [S].

   11.That the father shall refrain from making critical of derogative remarks about the maternal aunt or members of her family in the presence of or within the hearing of [S] and that the father shall do all things reasonably necessary to ensure that no other person makes any critical or derogative remarks about the maternal aunt or members of her family in the presence of or within the hearing of [S].

   12.That the maternal aunt and father shall refrain from discussing any adult issues or Court related information with [S].

   13.That when spending time with [S] the father will endeavour to be present on each occasion that [S] is at his residence.

   14.That the father shall notify the maternal aunt in writing within 7 days of any change or alteration to his residential address or telephone numbers.

   15.That the maternal aunt shall notify the father in writing within 7 days of any change or alteration to her residential address or telephone numbers.

   16.For the purpose of order 4, the maternal aunt at the commencement of the time the father is to spend with [S] shall deliver [S] to the father or his nominee at Central Railway Station Sydney, and at the conclusion of the time the father shall return [S] to the maternal aunt at Central Railway Station Sydney.

   NOTATION:

   The maternal aunt and the father desire the Court to note the following:

   A.The time [S] spends with the father shall take into account the wishes of [S].

   B.If either party is anticipating being late for either delivery or return of [S] in respect to Order 4, then that party should so advise the other party by mobile telephone.

   C.At the commencement of [S’s] soccer season the maternal aunt will provide the father with a soccer schedule and the father will check up to date schedules via the internet.

   D.The maternal aunt’s present address is […] and her mobile number is […] and her work phone number is […].

   E.The father’s present mobile number is […].

   F.It is noted the father will ensure [S] goes to her soccer matches on the weekends [S] is with him.

DOCUMENTS READ

1. The following documents were relied upon at the final hearing:

   29.1.Affidavit of C Egan filed 3 August 2007.

   29.2.Affidavit of M Egan filed 22 August 2006.

   29.3.Affidavit of M Egan filed 25 September 2007.

   29.4.Affidavit of NK sworn 31 October 2007.

   29.5.Affidavit of the father filed 9 December 2005.

   29.6.Affidavit of the father sworn 8 September 2006, filed 11 September 2006.

   29.7.Affidavit of the father sworn 25 October 2007.

   29.8.Affidavit of the paternal stepmother sworn 30 October 2007.

   29.9.Family Report by Mr O dated 28 August 2006 (“the 2006 Family Report”).

2. Mr O, at my request, conducted further interviews on 31 October 2007.  Unfortunately notwithstanding a request, he failed to observe the two boys with the paternal step-mother.  This was and will continue to be an unfortunate deficiency in the evidence that I have when determining this case.  On the other side, Mr NK had not been seen with the boys by Mr O. 

CREDIT

Father

1. I accept that the father was somewhat vague and uncertain in relation to answering some of the questions that were put to him in relation to parenting activities and events.  For example, he had great difficulty remembering that DoCS had put the boys in the care of the maternal aunt in 1997. 

2. In relation to the vagueness of other parts of his evidence about parenting, I formed the view that that wasn’t particularly due to any attempt to mislead me but rather due to the fact that his need to earn income to keep the family afloat meant that he was absent from the home for significant periods of time and that he had delegated some of the supervision responsibilities to the paternal step-mother.

3. The lack of fulsome acknowledgment of the role the maternal aunt had played in the boys’ lives did the father no credit. 

4. The main thing that affects the father’s credit is his maintenance of denial about the significant issue of disciplining the children prior to 2005.  I have formed the view that he was not accounting to me an accurate version of what had happened prior to that time. 

Ms H (the paternal step-mother)

1. Counsel for the maternal aunt submitted that the step-mother’s affidavit has to be discounted on the basis that it is in part recent invention.

2. It is clear that the weight to be placed on the paternal step-mother’s affidavit is diminished somewhat by some of the circumstances described below (see paragraphs 41 - 58). 

3. Counsel for the maternal aunt refers to the disclosure by J to the paternal step-mother about J threatening to kill himself with a knife. He submits that that lacks credibility because the father’s case was otherwise devoid of any reference to that particular event and I accept that is so. 

M Egan (the maternal aunt)

1. I formed the impression that the maternal aunt gave her evidence in a fairly forthwith manner.

Mr NK

1. There was no significant challenge to the credit of the partner of the maternal aunt.

Conclusion on credit

1. Although based on my findings of credit, on any issue in contention, where the evidence of the father and the paternal step-mother conflicts with the evidence of the maternal aunt, it would prefer the maternal aunt’s evidence.  When looked at on an overall basis, the significant issues in this case are not the subject of direct conflictual evidence between the parties themselves.  Many of the important facts in this case are not disputed.  In respect of those where there is contention, that dispute can be resolved, on balance, by looking at objective material.

THE EVIDENCE OF THE PATERNAL STEP-MOTHER AND COUNSEL FOR THE FATHER’S APPLICATION FOR AN ADJOURNMENT

1. At the conclusion of submissions on 2 November 2007 Ms Gibbons of counsel made an application that I delay making orders and delivering reasons in this matter for some indeterminate time to enable her to obtain a transcript of the oral evidence given by the paternal step-mother on the morning of 31 October 2007 and for her to obtain advice from her professional body.

2. During cross examination by counsel for the maternal aunt, questions were put to the paternal step-mother about whether or not the affidavit which she had sworn 31 October 2007 (even though the cover sheet asserts that the document was sworn 30 October 2007) was entirely her own words.

3. Ms Gibbons, counsel for the father, disclosed earlier in the trial that she had been up to midnight the night before attempting to complete this affidavit for the paternal step-mother. 

4. Ms Gibbons indicated on page 3 of the affidavit that she prepared and settled the paternal step-mother’s affidavit. 

5. It appears parts of the paternal step-mother’s affidavit were not in her own words.  For example, the paternal step-mother was not able to tell the court the meaning of the word “inter alia” which is contained in paragraph 31 of the affidavit.  She agreed that someone included that word in the affidavit and then she just read over the affidavit and signed it.  She was also unable to say why, given that she was not a party to the proceedings, she had asked the court to make certain orders and to obtain an undertaking from the maternal aunt. 

6. Apart from the word “inter alia” which the paternal step-mother didn’t know the meaning of, there are other examples in the affidavit, which the paternal step-mother was not asked questions about, which may not be the type of language that was consistent with the language that she used in her oral evidence.  Examples are:-

   46.1.paragraph 16 “but that this is as individual as individuals are”;

   46.2.paragraph 17 “global retardation”;

   46.3.paragraph 28 “and diminished as a result”

7. There were also some typographical errors which are probably a product of the way the document has been produced by counsel for the father.  For example the sixth line of paragraph 22 and the second line of paragraph 24.  Paragraph 40 refers to an annexure marked “A” which is not in fact attached to the affidavit (but is probably the instructions that were tendered by counsel for the father). 

8. In final submissions counsel for the maternal aunty submitted in effect the weight to be given to the paternal step-mother’s affidavit needed to be reduced on the basis that it had been prepared by counsel who had been present during the trial and who was mindful of the issues that had been raised during the trial.  Counsel for the maternal aunty submitted that parts of the paternal step-mother’s affidavit were clearly designed to address issues that had been raised during cross examination.

9. Pausing there, it should be noted that at the commencement of the hearing both sides were proposing that the two children live in their respective households in circumstances in which each of those respective households had a surrogate parent who had not been part of the interviews that had been conducted by the family consultant nor had sworn or filed any affidavit in the proceedings.  Consequently at the start of the applicant’s case no affidavit had been filed by the paternal step-mother and that affidavit was not filed until substantial evidence had been given in the respondent’s case.  There are some examples in the paternal step-mother’s affidavit that cover areas that were somewhat deficient after the applicant father had finished giving his evidence.  These include:

   49.1.paragraph 11 that deals with efforts made in relation to J’s speech problems;

   49.2.paragraph 14 dealing with problems in relation to obtaining repeat prescriptions of J’s ADHD medicine;

   49.3.paragraph 20 where the paternal step-mother gives an explanation as to why N might have been justified in hitting a boy in the mouth (there had been evidence that N had hit a boy in the mouth and knocked out his tooth). 

10. A further example of the affidavit reflecting issues that had been raised during the hearing is contained in paragraph 27.  There the paternal step-mother says of the father’s command of English:

    “He did not always understand the language or the meaning of some of the English words”. 

11. Counsel for the father earlier in the hearing had considerable difficulty accepting a ruling that had been made that an adjournment of the hearing not be granted to enable the father to have an interpreter (which application was made about half an hour after the father had been in cross examination).  I gave reasons for that ruling.  Counsel for the father renewed her application and sought that an interpreter be able to be used during re-examination of her client, notwithstanding the reasons I had previously given. 

12. There are parts of the affidavit however which were confirmed by the paternal step-mother in her oral evidence.

13. Examples of that are:-

    53.1.Her version in paragraph 26 of the way the children were disciplined at an earlier time;

    53.2.Her rendition of the alleged assault on S on 2 August 2005 which is set out in paragraph 33 of her affidavit;

    53.3.What happened when she finally went to court for the hearing of the assault charge (paragraph 38);

    53.4.What the situation was in respect of being able to obtain replacement scripts if tablets were lost (paragraph 40).

14. I find that:-

    54.1.the paternal step-mother’s affidavit was prepared and settled by counsel for the father;

    54.2.Not all of the affidavit is in the paternal step-mother’s usual language;

    54.3.Parts of the affidavit cover areas of contention raised during cross examination that might not otherwise have been covered had the affidavit been prepared, as it should have been, prior to the commencement of the hearing.

15. The paternal step-mother agreed that she read the affidavit over and signed it. 

16. Whilst the manner in which the paternal step-mother’s affidavit was prepared allows criticism of her credit, it does not mean I disregard the paternal step-mother’s evidence outright.

17. Ms Gibbons did not make it clear what she intends to do if I granted an open ended adjournment to her.  It seemed from what she said her concerns were:-

    57.1.That some type of aspersion was caste upon her professional integrity by submissions by counsel for the maternal aunt; and

    57.2.That this would somehow impact upon the paternal step-mother’s credibility.

18. Counsel for the maternal aunt denied that he had intended to attack Ms Gibbon’s professional integrity and I accept his submissions that he neither intended to do that nor in fact did that. The application was made after the evidence and submissions had concluded. Considerable time has now passed since the conclusion of the evidence and submissions. Counsel for the father has not sought to reopen the case nor make any further submissions.  I will dismiss the application made by counsel for the father at the end of submissions for an adjournment for an indeterminant period.

CHRONOLOGY

1. The father was born in February 1965.

2. M Egan was born in June 1967. 

3. The child Y was born in March 1992.

4. In 1993 the mother and father commenced a relationship.

5. In 1994 the mother and father married.

6. The eldest child of the relationship, S, was born in January 1994 (now aged 14 years).

7. The second child of the relationship, J, was born in November 1994 (now aged 13 years).

8. The youngest child of the relationship, N, was born in July 1996 (now aged 12 years).

9. D, a child of the father and the paternal step-mother, was born in February 1997 and is currently 11 years of age.

10. Between 1996 and 1997 the maternal aunt cared for the children consistently.

11. The father and the mother of S, J and N lived together up until about August 1995.  The father says that at that time he left the G home in which he had been living with the mother up until that time. 

12. In 1997, due to the mother’s drug addiction, the three children, S, J and N, came to live with their father.

13. At approximately this time the father commenced to cohabit with Ms H (the paternal step-mother). 

14. In 1997 the maternal aunt says that she was a party to an application at the Burwood Local Court that was transferred to the Sydney Family Court.  The father sought and obtained residence against the mother.  This application was withdrawn when the father agreed she and her sister could see the children. 

15. On 29 January 1999 consent orders were made in the Family Court, Sydney which provided that S, J and N reside with their father and for C Egan to have defined contact with S.

16. On 12 June 2002 consent orders were made by the Local Court, Family Matters, regarding the children spending time with the maternal aunt.

17. In December 2002 the children, J and N, were not returned to the father after spending time with the maternal aunt.

18. On 13 January 2003 the father applied for a recovery order for the children in the Hornsby Local Court.  The children returned to the father. 

19. Between January 2003 and August 2005 the maternal aunt spent time with the children, pursuant to the consent orders made 12 June 2002.

20. On 2 August S and the paternal step-mother were involved in an incident which became a focus in this litigation. 

1. On 5 August 2005 S arrived at the home of the maternal aunt with a black eye.

2. On 7 August 2005 the child, J, told the maternal aunt that the paternal step-mother punched S in the face and caused her black eye.

3. On 8 August 2005 an interim AVO was ordered against the paternal step-mother for the protection of S and criminal proceedings commenced.

4. On 12 August 2005 DoCS interviewed the maternal aunt and the children.  The children alleged that their father hits them with sticks, picks them up by their ears and throws them on the lounge.  The children also alleged that the paternal step-mother locked them out of the house in the dark of the night and wrote notes to their father about them, causing the father to hit the children.  DoCS did not take action and raised a query about some coaching of the children by the maternal family.

5. On 15 August 2005 the paternal step-mother was charged with assault occasioning actual bodily harm against S.

6. On 21 October 2005 the maternal aunt and C Egan approached the children, J and N, in the school grounds.

7. On 4 November, 11 November and 25 November 2005 the maternal aunt attended the H Railway Station to collect the children, as per the consent orders.  The maternal aunt says she waited 30 minutes, but the children did not arrive. 

8. On 9 December 2005 the maternal aunt filed an Application for Final Orders regarding the children, J and N, in the Parramatta Family Court.

9. On 22 December 2005 consent orders were made by the Local Court varying the orders made on 12 June 2002 for time with the children and the maternal aunt.

10. On 16 June 2006 C Egan filed an Application for Final Orders regarding the child, S.

11. On 17 July 2006 the father filed a Response to Application for Final Orders regarding the child S.

12. On 22 August 2006 the maternal aunt filed an Amended Application for Final Orders regarding the children, J and N.

13. On 6 September 2006 the family report by Michael O was released. 

STATUTORY CONSIDERATIONS

1. Section 65C(c) FLA provides that a parenting order in relation to a child may be applied for by “another person concerned with the care, welfare and development of the child”. There is no doubt in this case that the maternal aunty qualifies under s.65C(c) as a person entitled to make the application that she has.

2. In deciding what parenting orders to make for J and N, I must regard their best interests as my paramount consideration (s.60CA Family Law Act (“FLA”)). I also have regard to the objects and principles in Part VII FLA.

PRIMARY CONSIDERATIONS

1. Section 60CC(2) provides, when determining what is in a child’s best interests, the Court’s primary considerations as follows.

The benefit to the children of having a meaningful relationship with both of the children’s parents

1. The first primary consideration requires me to consider “the benefit to the child of having a meaningful relationship with both of the child’s parents”.  In this case the relevance of the first primary consideration can only apply to the father and not to the maternal aunt.  The father has been the primary carer for the boys since 1997 when the boys’ mother became unavailable and the boys were in need of care.  He has worked 12 hour shifts for years supporting the children and that is to his credit.  Counsel for the maternal aunt points to failings of the father as a disciplinarian and I will deal with those later, but I do not doubt the father’s commitment to the children and that the children do benefit from having a meaningful relationship with him.  Having said that of course the children are extremely lucky in having the maternal aunt available but given that she is the maternal aunt and not a parent the first primary consideration does not apply to the boys’ relationship with their maternal aunt.  As I will say later, the maternal aunt is a significant gateway for the boys having contact with their siblings and the extended maternal family and also their aboriginal culture. 

2. The Independent Children's Lawyer’s preferred proposal would mean that the children would spend the majority of their time with their father.

3. I accept the Independent Children's Lawyer’s observation that the first primary consideration was about the quality of the relationship rather than a quantity of time.  I am of the view however that the preferred proposal of the Independent Children's Lawyer maximises the chances of the boys receiving the benefit of having a meaningful relationship with their father. 

4. The maternal aunt asserts that the orders proposed by her will allow the children to have a meaningful relationship with their father, mother and extended family.  She submits that the father would prevent a meaningful relationship between her and the children.  I do not accept that is so. 

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Counsel for the maternal aunt submitted that although his client’s concerns started to develop in 2002 they were not cemented in place until the event of 2005 involving S.  The maternal aunt’s position up until 2005 was that she only wanted to fulfil some role left by the children’s “absent mother” and to provide for the children’s needs in relation to their Aboriginal heritage.

2. J and N have previously been exposed to violence during their parents’ relationship and the mother’s drug-taking behaviour.  I have no doubt that that has had an effect on them.  The more immediate question, however, is what has happened in respect of the recent history of family violence.

3. The children have been living with their father since 1997.  No allegations were made of any abuse of the children to any person in authority such as the police or the Department of Community Services until the children were interviewed in August 2005.

4. The maternal aunt’s evidence is that between 1997 and 2002 she became concerned about the welfare and safety of the children living with the father and the paternal step-mother.  The maternal aunt says she often saw bruises on the children when they attended at her home for contact on the weekends.  J said to her “dad hit me”.  She said she contacted DoCS because of her concerns and spoke to the father about the bruises.  She says the father said to her “mind your own business, they are my children”.  The father however did not remember saying anything like that nor did he remember the maternal aunt ever talking to him about bruises on J.  The assertions made by the maternal aunt in paragraph 17 of her affidavit sworn 21 September 2007 were squarely put to the father.  I am confident that he understood these questions.  His answers were less than convincing.  They were a combination of him saying that they were not true or that he couldn’t remember.

5. The father’s response can be summarised by saying that he in a blanket way denied that he had ever hit either of the children; that he had ever left bruising on any of the children; that the paternal step-mother had never hit the children; and that the paternal step-mother had never left bruising on any of the children.  The father’s case generally was that the boys play football and this is the source of any bruising that they might have sustained.  There was also reference by the father to S playing football with her brothers.

6. He asserted that the maternal aunt was making these things up to get an advantage. 

7. However this is inconsistent with admissions made by the father in September 2005. 

8. The Departmental records a file note on 16 September 2005 of an interview between the father and Department workers in which the father admitted using physical discipline and stated that he believed that that was what worked in the past (for example when children had stolen money).  The father was given literature on managing children’s challenging behaviours and he was referred to Centrecare for parenting support and the father’s group and was encouraged to contact them.  There is some evidence of the father attending on four occasions to Relationships Australia at North Sydney. 

9. The paternal step-mother said that she had never seen the father hit the children however she changed her evidence to agree that they got quite “light taps” on the bottom when they were younger.  She couldn’t remember anything about the father hitting a wall, although she did remember an incident where she took a hammer off J.  The paternal step-mother’s evidence was that the use of discipline was a very “long time ago”.

10. The maternal aunt asserts the children are physically abused and neglected while in the care of their father.  DoCS interviewed the maternal aunt and the children on 12 August 2005.  In summary, the children alleged that their father hit them with sticks, picked them up by their ears and threw them on the lounge.  The children allege that the paternal step-mother locked them out of the house in the dark at night and wrote notes to their father about them, causing the father to hit them.  The independent evidence on subpoena from DoCS seems to suggest that, although disclosures were made by the children, there was some question as to whether or not coaching may have occurred. 

S’s black eye on 2 August 2005 and the allegations of a cover-up

1. The incident on 2 August 2005 brought matters to a head.  It would appear that the boys were not present in the room when the incident took place.  The father said that he was at work when it happened.  He said that when he got home all that he observed was some redness under S’s left eye.  When he had a conversation with the paternal step-mother about what happened she explained to him that she was sitting on the lounge with a child on either side of her.  They were not behaving.  She threw up both her arms and the back of one of her hands contacted S’s left eye.  The father said that the red mark he saw never became a black eye. 

2. The details of what S had told the police were put to the father but he said that the paternal step-mother had not told him of any of it.  The essential elements that were put to him were that S was slapped on the left cheek by the paternal step-mother with an open hand.  She then pulled S’s pony tail very hard for about 2 minutes.  She then back handed S and her knuckles contacted S’s right eye causing her to have a black eye.  She then went and got a bag of frozen peas from the fridge and had S put it on her eye.

3. The maternal aunt in paragraph 24 of her affidavit says that when S arrived on Friday 5 August 2005 she had a black eye.  When she asked S what had happened to her eye, S is said to have replied “the boys were playing tackle football with me and that is how I hurt my eye”.  When the maternal aunt asked N whether or not that’s what happened, he confirmed that it was.

4. The maternal aunt however gives evidence that on Sunday 7 August J confided in her that he wanted to tell the truth about what happened to S.  J said that D was teasing S, S ran to the paternal step-mother to get her help to get this stopped and the paternal step-mother punched her in the face.

5. The father denied that he had ever threatened the children about disclosing the source of S’s black eye.

6. The father denied the allegation that he was involved in attempting to cover up what had happened.

7. The paternal step-mother asserted that the incident that took place on 2 August 2005 between her and S was an accident and “you can’t help accidents”.  Her version was she had made herself a cup of coffee and was sitting on the lounge.  S was sitting next to her nursing the family cat.  S began to fight with D and there was a considerable din between them. S then screamed loudly.  The paternal step-mother says that it was this scream that startled her and that it was her reaction, when startled, that caused her hand to come into contact with S’s face.  The paternal step-mother demonstrated her startled reaction where she threw her right arm backwards. She said that initially that her knuckles contacted S’s left cheek just under her left eye but she quickly corrected herself by indicating that the back of her hand connected with S’s right cheek just under her right eye.  Her evidence was that the momentum of her hand then travelled past S’s head and as she brought her arm back to its normal position her pinkie finger and ring finger got entangled in S’s hair between S’s ponytail and the back of her head near where S’s scrunchie was on her ponytail.  This caused S’s head to be pulled forward and may have caused S some pain. 

8. She noticed an initial swelling under S’s right eye.  She obtained a pack of peas from the freezer, wrapped it in a towel and placed it on S’s face.  She observed that there was a red mark under S’s right eye at the time. 

9. On 15 August 2005 the paternal step-mother was charged with assault occasioning actual bodily harm against S.  She pleaded to a lesser charge and she has been convicted of actual assault upon the child S.

10. I was told that the facts that were presented to the court did not include S receiving a black eye but were limited to the paternal step-mother pulling S’s hair (a written copy of the facts were not put into evidence).  The Magistrate recorded the offence but did not proceed to a conviction against the paternal step-mother.

11. The paternal step-mother explained that having originally sought to defend the charge in its entirety, she pleaded guilty in order to settle the matter without S having to be called to give evidence in the witness box and to be cross examined.  She said she didn’t want to put her through any stress.  She denied that she had initially pleaded not guilty in order to get the charge watered down.

12. The paternal step-mother was taken to parts of S’s record of interview with Constable C (from JIRT).  This statement was dated 9 August 2005.  Some of the relevant parts of S’s statement are as follows:

Q74	O.K. so do you want to tell me what you’ve come to talk to me about today?
A	About - - -
Q75	Do - - -
A	- - - I came here to talk to you about what, like, what’s my, what my dad’s doing to us, to me and my brothers.
Q76	Yeah.
A	And I don’t, and why we don’t wanna live with him and stuff.
Q77	O.K.  I can see you’ve got a bit of a, a bruise under your, your right eye there?
A	Yeah.
Q78	Tell, tell me about that?
A	Well, what happened?
Q79	Yes.
A	Well, my, arguing with my, my stepbrother was blaming me or something.  Then I started to scream at him and then it went straight through and went straight through my step-mum’s ear.  So then she couldn’t take it, so then she slapped me in the face.  Then she pulled my hair and then she backhanded me.  Yeah.
Q80	See, I’m just, like, making little dot points about what you’re telling me so I can remember.
A	Yeah.
Q81	So you told me that she backhanded you?  What happened next?
A	Then I, well then, then that, that’s all, but then my mum started to, she went to, to get some ice, a bag of peas and then she, like, she just hit me with it on the face.
Q82	And what happened after she got the bag of peas?
A	She just put it on my face, but she did it, she put it on very hard.
Q83	And what happened next?
A	That’s all.
.....
Q165	And did she say anything to you when she slapped you?
A	Yeah, she blamed it all on me.
Q166	What did she say?
A	She said that, it’s your fault, and stuff.
Q167	And when you say, stuff, what, what else did she say?
A	No, I mean, she just said, it’s your fault, and, stop, and she, she gets worried when I have to go back to my  Aunty’s because she knows she’ll get in trouble.
Q168	And did you say anything to your step-mum?
A	No.
Q169	So you told me that ........that mum slapped you on your right cheek, with an - - -
A	Yeah
Q170	- - - open hand and said to you, it’s your fault, and then you told me that she pulled your hair?
A	How she pulled it?
Q171	Mmm.
A	She pulled it like that, and stuff.
Q172	And - - -
A	It was in a pony and then she’s, like, pulled it really, really hard ........like that.
Q173	O.K.  So when she pulled your ponytail, did she use one hand, two hands - - -
A	I think she used - - -
Q174	........
A	- - - one hand.
Q175	Do you know what hand she used?
A	I’m not sure.
Q176	Did she say anything to you when she pulled your hair?
A	No.  I told her to, get off, and stuff, I told her to get off - - -
Q177	So where were you - - -
A	- - - but then - - -
Q178	- - - when she slapped you and pulled your hair?
A	After, we’re still on the lounge.
Q179	Were you standing or you’re sitting or something else?
A	Sitting.  Then she went behind me, then she started to pull it, pull my - - -
Q180	You told me she went behind you?
A	She went, like, I was sitting here and then she’s, pretend that’s, this is the, that’s the lounge we’re sitting on, she just went behind me, then she pulled my hair.
Q181	O.K. and what happened to you when she pulled your hair/
A	Nothing really
Q182	Did it make you move or - - -
A	Yeah.  I had the, I got off, off the lounge, because it, because I didn’t wanna sit there any more - - -
Q183	Mmm Mmm.
A	- - - after she did that.
Q184	O.K. and how did it make you feel that she, when she pulled your hair?
A	I felt upset.
Q185	How did it make you feel, what did it feel like when she pulled your hair?
A	What do you mean?
Q186	Well, did it hurt or - - -
A	Yeah, it hurt.
Q187	- - - did it, did you feel anything or nothing at all?
A	Yeah, it hurt.
Q188	Did it, and how long did she pull  your hair for?
A	For about, I, I’m not, like, think 2 minutes, because she wouldn’t get off.
Q189	And when you say, she wouldn’t get off, what - - -
A	I mean, well, she wouldn’t she wouldn’t let go of my hair until - - -
Q190	O.K.
A	- - - I got up.
Q191	O.K.  So she pulled your hair about 2 minutes and she wouldn’t let go until you got up?
A	Yeah
Q192	So tell me what happened after you got off, off the lounge?
A	And she laughed at, she laughed at the, until, until ...........
Q193	O.K., because you told me that, she pulled you hair and then she backhanded you?
A	Yeah.
Q194	So how did that happen - - -
A	But - - -
Q195	- - - when she pulled your hair and then backhanded?
A	I, I don’t really understand
Q196	O.K., because you told me before that your step-mum slapped you on your right cheek and then she pulled your hair - - -
Q197	- - - and then she backhanded you.  So when did she backhand you?
A	After she pulled my hair, she, that’s when I got the bruise.

1. The paternal step-mother agreed that she had read the record of interview but she didn’t remember those parts of the record of interview.  It was put to the paternal step-mother that she had shown no compassion for S at the end of this incident.  The paternal step-mother denied this and said that she had put a towel around the peas so it wouldn’t burn her face. 

2. Dr A carried out a medication examination of S some six days after the event (the incident happened on Tuesday 2 August 2005; Dr A’s medical examination was at 4.30pm on 8 August 2005).  Dr A observed bruising and swelling to the right eye of S at that time.

3. The paternal step-mother denied that she had told S and N to say that the injury had been sustained as a result of football practice.

4. The paternal step-mother confirmed N and J were not present during the incident.  They came into the room afterwards.

5. Counsel for the maternal aunt commented that a doctor who saw S on 8 August made observations of swelling and bruising.  He asked me to contrast that with the evidence of the paternal step-mother who said the swelling had diminished after the application of a bag of peas to the eye. 

1. I am comfortably satisfied that the demonstration made by the paternal step-mother in the court room did not accurately depict what happened in her lounge room on that day.  It would not be normal for someone who was startled to raise their arm vertically above their head and then behind their back in the manner demonstrated by the paternal step-mother. 

2. I find on balance also that the children were encouraged by either the paternal step-mother or the father or both of them to provide the maternal aunt with an explanation that S’s injury was a football related injury.  I conclude, as invited to by counsel for the maternal aunt, that there was an attempt by the father and the paternal step-mother to cover up a deliberate action.  Even though the maternal aunt was present, S’s account was given to experienced investigators shortly after the event happened.  I accept S’s account of what happened as recorded in the record of interview was more likely to be closer to what actually happened than the paternal step-mother’s account. 

Allegations made by the children to DoCS in August 2005

1. Exhibit C is part of documents produced by the Department of Community Services relating to inquiries made arising from the incident involving S and the paternal step-mother in August 2005.

2. The Departmental file contains a note dated 10 August 2005 of an interview between J and a case worker in the Department by the name of Ms LH.  J told Ms LH that he had to stay at home and away from school a lot in 2005 because he had bruising.  J said he stayed at home 11 days because his father hit him a lot.  He had never been to a doctor in relation to the bruising.  J reported a lot of arguments in the house between the father and the paternal step-mother.  Significantly the person interviewing the boys in August 2005 did not observe any bruising upon them at that time.  J said that he had bruises and that “Dad doesn’t take us to school when that happened”. The absentee records from the school however do not show any alarming trend of extended absences.  N was asked whether or not he had ever stayed home because of bruising and he told the interviewer that he did not. 

3. N said his parents sort of shouted at one another and he had once seen them hitting each other.  N told Ms LH on 10 August that S had lied about how S’s eye was hurt (it was not by playing tackle football).  In an earlier interview with Ms LH on 10 August 2005 N had said that sometimes the paternal step-mother hit them, that once N had stood up and said ‘stop hitting [N] and then she hit D.  “She gets the brush out with sticks, wooden spoon and other stuff.  Sometimes hits out with her hand.  Everywhere on the body”.  A body chart was used for N to indicate where he had been hit. N said that the paternal step-mother had whacked him with her hand on his face.  He had also been hit on the leg by his father and had got a bruise a few months ago.  He also got hit on the side on the leg with a stick which was like bamboo and the bruise went blackish purple.  N reported that this happened “nearly every day” and the hitting was by both the paternal step-mother and his father.  On a scale of zero to ten when zero was unsafe and ten was safe, N felt that he could only score his father a two on that scale.  He scored the maternal aunt a nine on that scale.  At that time (August 2005) N expressed a wish to the Departmental officer that he stay with his aunt. He didn’t feel safe at home.  He expressed the view at that time (August 2005) that his father wouldn’t change and that nothing would make him feel safe at the home and that he wanted to live with his aunt.  N at that time (August 2005) said he did not miss his father.

4. J told the Departmental officer that the paternal step-mother daily hit him on the arm, shoulder, near his legs and chin and that he bruised some of the time. 

5. There was a note of an interview between J and Ms LH on 10 August 2005 with the maternal aunt present.  J said that he had been hit with bamboo by his father when his father got angry.  He specifically said that he had been hit two times on the leg with bamboo when he and his brother were fighting over roller blades.  He got hit on the legs, on his back and top and near his ankle.  Both J and N during the interviews with Department officers in August 2005 completed a body chart on which they drew the areas where they had been hit.

6. J said he had been hit “heaps”.  He had been hit with a fly swat, brushes, wooden spoons and belts. He had been kicked out of the house and told by the paternal step-mother not to come back. 

7. He said that the paternal step-mother had grabbed him by the shirt and pushed him against the wall.  J said he was on his bed and the paternal step-mother had held her elbow in his face.  She had written a note to his father.  J told the Department officer in August 2005 that his father tells the paternal step-mother to belt J in the face.  J said that he had been kicked at the bottom of his leg near his ankle by his father and spat on by his father when he was on the toilet.  He thought the paternal step-mother was “nasty”.  J said that his father hit him a lot more than the paternal step-mother hit him.  J said that his father had told him to shut up about being hit by his father.  In the August 2005 interview, J said that he felt safer with his maternal aunt and that he was scared of his father and feared a flogging for telling the truth.  J said that every time he was in trouble his father hit him with a belt and regularly used brushes and spoons to hit him. 

8. There is a note on the Departmental file dated 17 August 2005 that the maternal aunt had requested that the Department provide a letter confirming that the children were in her care.  She needed the letter for LM Public School as the boys had commenced enrolment at that school and she needed it to make a request for payment from Centrelink.  She had attempted to get Legal Aid but had been asked to give the father a brochure suggesting that they attend mediation. 

9. There is a note on the Department file (Exhibit C) dated 9 September 2005 which indicates that the father had been referred to Centrecare Father’s Group and given a DoCS brochure on challenging behaviours.

10. There is a real question as to whether or not the boys have exaggerated what happened prior to August 2005.

11. I accept that S was assaulted in the manner that S describes to the police in her record of interview.

12. I accept the statement made by the father to DoCS that he (prior to 2005) hit the children.  The children told the report writer that when they met him for the first time.  I am satisfied that up until August 2005 the father and the paternal step-mother were in the regular habit of using physical force on J and N.

13. I am less comfortable however in accepting the details given by J and N to DoCS.  I have formed the view that the boys on occasions have embellished statements they have made and I am not on balance satisfied that for example the father used a bamboo stick to strike the boys.

14. I find it significant that Mr O in his observations of the boys with their father never reported any observation of either of the boys being afraid of their father and on the commentary he reports that they seem to have a positive relationship with their father.  At no stage has the maternal aunt ever sought a supervision order.  The maternal aunt proposes that the boys have unsupervised time with their father. 

15. The father in an interview on 15 September 2005 admitted to the Departmental officers that he had some times disciplined the children “but not very bad”.  He said there were no bruises and no marks to their face.  During this interview the father indicated that he was happy to learn how to discipline the children and had developed new strategies for doing that.  He was told about new ways of disciplining the children for example removing things from them that they liked.  He was asked how he felt about that. His response wasn’t overly enthusiastic.  He said he put money on a table and told them not to touch it and if they did touch it they would get a smack.  The departmental officer asked whether or not that was working and he replied “I reckon”.  The Departmental officer said that it wasn’t working, it was distressing the children and that that’s what they wanted to avoid happening with the boys.  During this interview the father didn’t seem to have a great deal of insight in respect to the effect his physical discipline was having upon the children.  He reiterated that he only ever used his hand to hit the children and that he didn’t recollect any occasion when one of the boys was bleeding from his ear.  The father asserted towards the end of the interview that he would try and talk through unacceptable behaviour with the boys and that he had changed his practices since DoCS had become involved.  He had learnt that he can’t smack but he asserted the whole thing involving S was an accident and was a tiny incident.  The DoCS officer challenged the father about that saying that a black eye to a 9 year old child was not a tiny thing and that if there was a further report of physical violence against the boys then DoCS would look at court action.  The father however denied that because he was a big man he could possibly injure a child.

16. I am satisfied that the course the father underwent has provided some beneficial assistance to him in relation to his attitude towards physical discipline of the boys and that there has been a change in his behaviour in that regard. 

Alleged sequence of family violence in the father’s household

1. Counsel for the maternal aunt submits that the boys were now living in a violent household and that the psychological effects of that circumstance are now manifesting themselves in the behaviour of both the boys.

2. Counsel for the maternal aunt conceded that if this was a care jurisdiction there would be no order made.  He conceded that physically the boys have been properly attended to in terms of food, clothing and accommodation.  His submission however was that psychologically the boys were very damaged and that the father’s household does not have the capacity to deal with the sequelae of family violence.

3. He pointed to the fact that the father and the paternal step-mother denied the family violence and it was those denials more than anything that would point to me finding that there was an unacceptable risk of the boys remaining in the father’s household.  Counsel for the maternal aunt submitted that this was “the last chance for [J]” and that the maternal aunt was the “only carer that was available to the court to address the risk”.

4. In relation to J, counsel for the maternal aunt submits that he has been in trouble with the police, hanging around railway stations, being a bully at school, he hasn’t done his homework, and he doesn’t take his medication.  Counsel for the maternal aunt submitted that J’s 2006 report was an appalling report.

5. Counsel for the maternal aunt submitted that N was suspended on the basis of two notifications, one for knocking a boy’s tooth out and the other for physically leaving a mark on a child. 

6. There are some file notes on the school report detailing meetings and telephone conversations with the father concerning behavioural problems.

7. The paternal step-mother seemed in some senses to justify N’s behaviour when he knocked a boy’s tooth out on the basis that he was being racially taunted at the time.  When pressed about it however she conceded that the boy had done the wrong thing but so had the other boy done the wrong thing by being racist. 

8. The report from the Department of Education and Training dated 1 March 2007 records that J’s ADHD meant that he was performing well below the rest of his class but that that was substantially due to his learning difficulties and poor interaction with peers in his class.  It was noted that J was bullying (including one serious incident) and had been extremely disruptive in the class room.

9. To the paternal step-mother’s knowledge J has only been involved in one incident with the police.  It concerned an incident at a Railway Station when some boys he was with said they would bash him if he did not bash another boy, so he did.

10. She said she had never seen a progress report from Q Boys High.  She thought that it should have been posted but she had never seen it.  She had never heard any reference to “old bad boys” in March.  The school notes indicate that at that time at least one teacher had a fear that J was mixing with the “old bad boys”.

11. Whilst there are comments in the school reports about children annoying N, there is no note in the records about racist comments being made to N.

12. The paternal step-mother opined that J wasn’t uncontrollable but there were problems that you would expect as he moved into his adolescent years.  There was also problems when he didn’t take his medication but mostly he was fine.

13. The paternal step-mother was asked whether or not she had seen any documentation in relation to J’s suspension in March 2007.  Her answer was that she didn’t ask to see it.  It was put to her that she was indifferent in respect of why J had been suspended.  She explained that neither the father nor she could get time off work initially and that is why they asked the maternal aunt to mind J for the first week.  They then altered their work times and were able to look after him for the balance of his suspension.  

14. Counsel for the maternal aunt claims that the paternal step-mother did not take any interest at all in the letter of suspension received in April 2007 and he asserted that that was extraordinary but I do not accept that is so. 

Conclusion about risk to the boys in their father’s household

1. There has been no report of physical violence towards the boys in the father’s household since September 2005.  The Department in 2005 had some doubts about how much of the story as reported by the children was accurate and how much had been encouraged by the maternal aunt.  There were clearly difficulties in the father’s household at that time and the boys expressed a view at the time of the interviews for the first report that they would prefer to live with their aunty.  It is notable that there was no expression by the boys of any acts of family violence to Mr O when he met with them for the second lot of interviews in 2007.  I take it as an indication of changed behaviour in the father’s household that J reported to the family consultant in October 2007 that it was now nice, quiet and peaceful in the household.

2. The school records don’t indicate the observation of any bruising on the boys.  These are not isolated children, they are not children whose schooling has been regularly changed.  If there was any systemic level of physical abuse of the children by their father it would be in my view probable that school teachers would have observed some injuries on the boys at some time.  There has been no significant report of injury to N and J by any independent person.  Mr MC has spoken to the Department on a number of occasions and the pink tags in Exhibit I are suggestive of the fact that the school has not observed any signs of excessive discipline to the boys.  Mr MC has indicated to DoCS that his view the father’s involvement with the school has improved in recent times.

3. The maternal aunt had been seeing the boys each second weekend and there has been no complaint of systemic family violence or any major incident since September 2005.  It seems that the father has obtained some insights since 2005 on how to manage the boys’ behavioural issues without resorting to physical violence.

4. I accept the Independent Children’s Lawyer’s recommendation that an order should be made that neither the father nor the paternal step-mother use physical force as a method of discipline.

Allegations in relation to the maternal aunt’s involvement in drugs

1. There was an allegation made very late in the day that the boys had reported to their father information that would lead one to possibly conclude that there was the use of drugs in the maternal aunt’s household. 

2. As counsel for the maternal aunt points out the allegation concerning the $50 baggies and the tin on the top of the cupboard and Mr AH all arose as a response to a fairly bland character testimonial of a self serving nature contained in paragraph 56 of the maternal aunt’s primary affidavit.  There is no evidence before me whatsoever that anything has been reported to the police or there has been any notification made to DoCS in relation to drug trafficking.  I form the view that neither the father nor the paternal step-mother takes the allegation seriously. 

3. There is a note on the Department file dated 20 September 2005 indicating that Mr …, principal at M School had told the Department that J had told him that “his aunt” is selling drugs and drinking all the time.  It is unclear from the note as to whether this is a reference to M, C or some other aunty.  When the principal queried J about this allegation, J told the principal that “his mother (referring to his paternal step-mother) told him to say it”. 

4. The father reiterated in oral evidence that the boys had said that the maternal aunt had been cutting up drugs, had been selling bags of drugs for $50 and had been selling drugs to a man called Mr AH.

5. When the boys told him these three things the father said that he believed the boys were telling him the truth.

6. The father was pressed as to whether or not he really believed that the maternal aunt was involved in selling drugs.  Whilst the father said he believed the boys, the manner in which he gave that evidence left me less than convinced that the father believed these allegations.  The father did not give any compelling response when it was put to him that although he asserted he was very worried about this activity by the maternal aunt, he nonetheless had no hesitation in suggesting that the boys would spend significant amounts of time with her unsupervised.

7. The father asserted that the boys were always truthful.  He was then asked whether or not the boys were truthful when they had told DoCS that they had been hit by the paternal step-mother with a brush.  At that point the father indicated he had no idea if the boys were making up the story about being hit with a brush.  I find that the father did not have any real conviction of the maternal aunty of trafficking in drugs nor do I find that there is any unacceptable risk that she did so. 

8. There is no evidence apart from what the boys may have said to their father.  I am not satisfied on balance, to the Briginshaw standard, that the maternal aunt is involved in any illicit drug activities.  Nor am I satisfied on balance that the father put the boys up to making these allegations.   The boys in my view in the past have on the occasion of the interviews with DoCS reported things against the father in an exaggerated way.  Clearly the boys are now expressing the view that they want to stay in their father’s home and it is my view that they have not accurately reported what they have seen in the maternal aunt’s household concerning drug use. 

ADDITIONAL CONSIDERATIONS

1. Section 60CC(3) FLA sets out the additional considerations and I now discuss those which I consider relevant.

Views expressed by the children

1. At the date of the hearing J was aged 13 years and N is aged 12 years.  Given the age and maturity of the children, significant weight should be given to the views most recently expressed by the boys.

2. The 2006 family report notes that J:

   “…firmly stated that ‘I want to live with my Aunt and see Dad every second weekend…” (at [21]).

3. With regard to N, the 2006 family report notes:

   “…he stated ‘I’ll like to live with my aunty she does not shout at me and hit me and I don’t think dad would worry if I went to live with my aunty…” (at [23]).

4. The paternal step-mother said she had not read the whole of the first family report but had been told about bits and pieces in it.  The father’s reaction when reading the 2006 family report was that he was very upset.  The paternal step-mother said that he was crying.  This was at a time when the boys were not in the house.  She was unaware as to whether or not the father had spoken to the boys about what was in the family report.

1. In the first family report at page 11, the father told Mr O that “… his partner Ms [H] ‘had trouble with my daughter’ and he tried to support both …”.

2. It seems the father’s divided loyalties at that time impacted upon his capacity to meet the emotional needs of his teenage daughter and, as a result, arrangements were put in place which substantially are now the subject of orders that I have made.

3. In respect of J and N, I note that they have been in the father’s household since the time these proceedings commenced.  Apart from allegations made about the father’s household in terms of family violence and the assertions made about its sequelae, the maternal aunt makes complaints about the care of the boys in their father’s household in relation to:

   235.1.medication; and

   235.2.schooling. 

4. The capacity of the maternal aunt to provide for the boys has been proven in the past.  It should be noted that the maternal aunt already has the care of the mother’s three other children.  I have some minor reservations about her capacity to take on two more children, but having said that it if the household of the father was found to pose unacceptable risk then I would be comfortable in placing the children with her.

5. The husband of the maternal aunt, Mr NK, supports her in her application.  The maternal aunt and he have been living together for eight years and have one son, X, who was born in November 1999.  Mr NK was not seen with the boys by the report writer.  He denied that there were any drugs in his home.  I accept that he has no criminal convictions and that is otherwise a person of good character.   He confirmed that there were already six children living in his household. 

Medication

1. The issue was raised about problems in relation to J being administered and taking his medication.  The paternal step-mother said that on occasions J would loose or deliberately dispose of his medication without taking it.  When this happened future stocks of the medication had to be called upon so that J could have his daily dose.  J has for some time taken two tablets, one in the morning at around 8am to 8.30am and the other in the afternoon at around 3.30pm.  The paternal step-mother’s evidence was therefore that in a six month period the medication could run out towards the end of that period.  She asserted that on the one occasion when she attempted to get the doctor to write a new script prior to the conclusion of a six month period he did so quite reluctantly.  I got the impression that this experience meant that when scripts ran out before the new script was due there was a reluctance to attempt to address the problem and J went without a medication for that period. 

2. On 17 August 2005 the maternal aunt reported to the Department that J has not been on his medication.  The file note of 17 August 2005 suggests that the father had said to DoCS on that date that they did not have any medication.  The father in cross examination denied any suggestions that he hadn’t properly attended to ensuring that J had his medication and was taking his medication at all times.  

3. There is a file note dated 5 September 2005 which records that the maternal aunt called the Department telling the Department as to what had happened on Father’s Day.  This confirms what the maternal aunt said in the witness box, that is, that she had an appointment with a specialist at H, Dr LE, on the Thursday after Father’s Day 2005 in relation to J’s medication. 

4. There is a more basic problem however and that is that the paternal step-mother has not always properly supervised J taking his medication before he left the house of a morning nor has she always properly supervised him taking his medication upon his return from school. 

5. Mr O commented that children like J who have problems with ADHD are sometimes quite resistant to taking medication.

6. The father, I think to his credit, has reached an agreement with the school whereby the school would administer the medication. 

7. I don’t accept the criticism by counsel for the maternal aunt in final submissions that the father and the paternal step-mother have not done what they can to ensure that J regularly takes his medication.

8. I find that it is nonetheless appropriate to make the order sought by the Independent Children's Lawyer relating to the administration of J’s medication and ensuing J takes his medication.

Schooling

1. J’s kindergarten report in 2000 recorded him as being friendly and well mannered but noted early signs that J found class work very challenging and needed individual help.  His 2001 year 1 report indicated that he had made some progress, especially in areas of social relationships and attentativeness in class.  Again the need for individual attention was noted.  His 2002 year 2 report noted that he had worked hard and made real progress and that he had been working on an individual program which focused on areas of phonics, reading and mathematics.  It had noted his time in class was more settled as was his behaviour in the playground.  J’s 2003 year 3 report noted that J was a pleasant student who usually tried to do his best and noted progress in some areas.  No significant behavioural problems were noted.  J’s year 4 2004 report recorded him as a quiet, hard working student who tries hard to please.  It noted he had made very good progress in all areas, particularly reading in the 2004 year.   He had become more independent or able to follow instructions but noted however he still had difficulty expressing himself and his language skills needed improvement.  It recorded that J’s effort in mathematics was commendable.

2. J’s 2005 year 5 report indicated that he started the year with a positive attitude.  It went on to say that he became unsettled at the end of the year and that his improvement was not continuing.  Given what happened towards the end of 2005 in J’s family situation, the disruption to his academic performance was not one that I find surprising.  The year 5 report is positive in other areas.  It records that J achieved success in overcoming his concerns about speaking and performing in front of an audience (recording that as a major achievement).  The report raised a question over his need to continue to focus on his class work and looked forward with hope to year 6. 

3. J’s year 6 end of year report has been described by counsel for the maternal aunt as appalling. The report records negative assessments in relation to some of J’s attitudes and work habits.  It said that J did not demonstrates initiative; was not ‘well organised’ and did not ‘complete homework tasks’. 

4. Other attitudes and work habits were given a intermediate assessment.  J was absent for seven days during 2006 which is not an alarming rate of absenteeism.  In general comments the report records:

   “[J] has made basic progress in English and math.  He can be easily distracted in class at times and does not always complete his work. [J] needs to develop better homework practices to ensure assignment work is completed.”

5. J’s year 6 report is the worst of any of his school reports but, in my view, it is not one that would attract the description given to it by counsel for the maternal aunt in final submissions.

6. N’s school reports have not been a problem apart from completing homework tasks.  N was in year 4 in 2006.  He was not absent any days in 2006.  General comments in his 2006 report reads:-

   “[N] is extremely quiet in class at all times. He has excellent manners and is very attentive but does not join in discussions or group activities.  He never offers opinions.  He concentrates well and takes pride in handwriting and book work.  In the classroom he socialises well with others.  [N] rarely completes all set homework. He enjoys mathematics and applies himself well.”

7. The paternal step-mother says that she is responsible for school homework.  Counsel for the maternal aunt claims that homework was not being done at the end of 2006. 

8. I formed the impression that there were some problems in the support the paternal step-mother gave N and J in relation to academic matters.  She initially didn’t remember a meeting at school with various people but did recall one occasion when she went to M School about J when there were five people in the room.  J’s learning capabilities however create a difficult problem to manage.  The paternal step-mother said that J tries but does get lost when attempting to do homework.

9. In August 2005 the Departmental file recorded that the principal at M School told the Department that he had met the paternal step-mother and that she was the primary person engaged with the school.  The principal had only seen the father on one occasion and that was to discuss J’s ADHD medication with him. 

10. The school was experiencing violent outbursts from J in 2005 and J suffered from learning difficulties.  The principal described the step mother as a very strong willed woman who was supportive of the boys.

11. The paternal step-mother asserted that she was involved in doing the children’s homework.  She would get them up at the table and said that she was always at home when the children came home from school and that had been the case since they had been in kindergarten. 

12. The paternal step-mother was questioned as to why school records showed that homework was regularly not done by N and J.  She said that most times in the last couple of years N and J had said to her that they had done their homework at school or that they had never in fact got any homework.  She only found out at the end of 2006 that that wasn’t accurate when she had got the end of year report.  N’s report had homework ticked as rarely done. 

13. The paternal step-mother said she did not initially see J’s end of school report.  He had brought it home but it had been hard to get it from him.  J gave it to her after a while and after his father had spoken to him about it. 

14. Overall I do not consider the school reports were of major concern.  In the realms of academic ability, both of the boys appear to be doing reasonably well with their school work.  N’s general comments are that he is progressing well.  In relation to J, apart from behavioural problems, he seems to be coping with school satisfactorily.  There is no corroboration from the school about the children having any difficulties with their father or the paternal step-mother.

15. The paternal step-mother has clearly committed herself as has her mother to assisting J with his educational needs.  She has been in the front line of taking him to school events and assisting him generally. 

16. The paternal step-mother agreed that there was a period where J got later and later home from school.  Although some criticism could be made of the paternal step-mother ensuring that J came directly home from school; it is not the case that she did nothing in that regard.  She did reprimand him in relation to it and there was an improvement initially in that behaviour.  J of course has long term medical issues and receives medication for ADHD.

17. The paternal step-mother indicated that J started to come home at 4pm and then he started to get later and after she developed concerns she spoke to the father and the father spoke to J and the situation became better.

18. The paternal step-mother was asked about why N had been absent from school for six days in 2005. She said she couldn’t specifically remember.  She couldn’t remember if they were individual days or more than one day at a time.  She said she always wrote a note.  She didn’t have to get medical certificates if it was not more than one day.

19. Overall I do not accept the extent of the criticism levelled against the father and the paternal step-mother in respect of their lack of parental capacity.

Aboriginality and background

1. I find the father is not going to, in any way, prevent the children from participating in their Aboriginal culture when they are with the maternal aunt.  I am sure that the maternal aunt will ensure that both boys can benefit as much as they can with contact with their Aboriginal culture.  I intend to make an order that the maternal aunt be permitted to take the children to any NAIDOC celebrations whenever they are held. 

2. The paternal step-mother said that there had been little communication between her and the maternal aunt and that the boys on occasions had come home and said that white people were bad and Captain Cook was bad.

3. The boys, the maternal aunt and her extended family identify as Aboriginal and observe the customs and traditions of their culture.  In particular, the maternal family has ensured the children have regularly visited their extended family since the mother and father separated in 2002.  This is a strong positive influence for J and N. 

4. C Egan who will continue to have some form of contact with the boys is employed by an Aboriginal organisation and the evidence in her affidavit indicated that she had day to day involvement with the Aboriginal community.

5. The father was born in Tonga, identifies with his culture and shares those cultural experiences with his children.  The paternal step-mother said that her husband sometimes participated in Tongan festivals.

The attitude to the children and the responsibilities of parenthood demonstrated by each parent

1. This additional consideration focuses on the attitude of parents and is therefore not about the attitudes of the maternal aunt. However, s 60CC(30(m) FLA is sufficiently wide to allow me to take her attitudes into account.

2. The father has been a constant force in the boys’ lives since 1997.  I have already mentioned he works 12 hour shifts.  That means some times he is not at times.  Sometimes he is asleep.  The paternal step-mother has been there all the time covering for the father.  Despite some hiccups, things have improved in recent times and I am comfortably satisfied that there is no significant ongoing issues.

3. The paternal step-mother’s evidence is that J attended a special school where he did a course to assist him in his behaviour and he has now been integrated back into Q school where they have a fairly positive view of him.

4. The Independent Children’s Lawyer, in his Case Outline, expresses some concern about statements made by the father to the report writer as set out in paragraph 15, saying that it could be argued that the father sees the children as property to be awarded to him by the Court.  I don’t read paragraph 15 in that way and having heard from the father I don’t believe that he has that attitude to the children.  Again, both the father and the maternal aunt have in the past displayed an appropriate attitude to the children and to their responsibilities of parenthood.  The only questions raised against the father are those in respect of family violence and issues regarding the capacity of the father to meet the educational and medication needs of J and I have set out my findings about those matters above. 

5. Allegations are raised against the maternal aunt of connections with drugs which I have found have no substance.

6. Any suggestion by the paternal step-mother that the maternal aunt is motivated in this case by some type of reverse racism (that is the assertion that the maternal aunt doesn’t want a white person looking after children of non white mixed heritage) is not one upon which I put any credence. 

7. It is my view that the maternal aunt showed an appropriate attitude to the needs of J and N when she instituted proceedings following serious allegations of physical abuse against the children in the father’s household.  I agree with the Independent Children’s Lawyer’s assertion that that was a child focused response.

Family violence

1. I have explored this issue when discussing the second primary consideration.

Any family violence order that applies

1. There was an ADVO order against the father’s partner, the paternal step-mother, protecting S.

Whether it would be preferable to make an order that would avoid future proceedings

1. It is my view that the orders proposed by the Independent Children’s Lawyer and supported by the father are likely to produce a result that creates the most stability in the future for the boys, and is the preferable order to make with a view to avoiding future proceedings.

EQUALLY SHARED PARENTAL RESPONSIBILITY

1. The maternal aunt has sought that she and the father have for equal shared parental responsibility for J and N.  The presumption in s.61DA is not applicable in this case as the maternal aunt is not a parent. 

2. The Independent Children’s Lawyer supports that application and the father consents to such an order being made. 

3. The father and the maternal aunt currently have a very poor level of communication with one another and there is a considerable degree of animosity between them, partly I have no doubt generated by this litigation.

4. Given that they have both agreed that it is in the boys’ best interests for them to work together and to consult with one another when making decisions about serious questions in respect of health, education and the boys’ long term care, welfare and development, it is important that they attempt to improve their level of communication.  Some of the ancillary orders suggested by the Independent Children’s Lawyer and supported by the father will provide some guidance in respect of how that communication should happen and I intend to make orders in those terms.

5. Even thought there is in this case only an order for equal shared parental responsibility between a parent and a non parent, I still am able to consider whether or not it is in the boys’ best interests for them to spend equal time with each of the parties and if not, to consider whether or not they should spend substantial and significant time with the party with whom they do not live most of the time.

6. Neither party nor the Independent Children’s Lawyer (on either of the alternate proposals) in exhibit “P” and exhibit “Q” set out above suggest orders that J and N should spend equal time with both the parties. Both boys need to go to school and the father lives at M, the maternal aunt lives at E. No proposal was made by any of the parties or the Independent Children’s Lawyer that would indicate how the logistics of the boys going to school would be handled if they lived the households of the parties on a week about basis or some other equal time basis. Apart from that logistic difficulty, when considering the other matters mentioned s.65DAA(5) FLA (although that subsection is not applicable but can still be used to guide me about what to consider), I have already commented upon the current lack of communication between the father and the maternal aunt and the animosity the currently exists between them.

7. I conclude that an equal time arrangement for J and N is not practicable.

8. The proposals of both parties and the alternate proposals of the Independent Children’s Lawyer do not technically satisfy the definition under the act of substantial and significant time.  This is because on all proposals the boys would be living in the one home during school term weeks and so one of the parties would not be participating on a day to day basis in respect of the schooling activities of the boys.

9. Having said that the amount of time that the boys will be spending with the maternal aunt upon the primary proposal of the Independent Children’s Lawyer, whilst not technically meeting the definition of substantial and significant, is certainly that in terms of the ordinary use of those words.  The boys will be spending the majority of school holidays with her.

10. I do not consider that it is in the boys best interests for them to spend school week time with the maternal aunt. 

CONCLUSION - What is in the boys’ best interests?

1. I don’t accept the submission by counsel for the maternal aunt that this is the boys “last chance” nor do I accept that there is family violence in the father’s household sufficient to warrant what would be a significant change in the boys’ long term arrangements. 

2. I don’t overlook the poor behaviour of N in getting into a fight where another boy had a tooth knocked out in October 2006 and a problem with J in March 2007.  J’s problems though have to be seen in the context of his attention deficient disorder and the challenges that that creates. 

1. The orders that I make mean that S will be spending each alternate weekend in her father’s home with N and J (and D).  On each other weekend S, J and N will be spending the weekend together in the home of the maternal aunty.  The three siblings will be spending significant amounts of time together during school holidays.

PROPOSED ORDERS

1. I have discussed above the reasons for making some specific orders. 

2. The Independent Children’s Lawyer proposes that an order be made that neither the father nor the paternal step-mother physically discipline either of the boys.  Given the history in this matter I think that that is a sensible order to make and I propose to do so.

3. I accept that other ancillary orders sought by the Independent Children's Lawyer are in the best interests of the boys. 

I certify that the preceding two hundred and ninety-five (295) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  8 September 2008