Tracey and Winterbourne

FAMILY COURT OF AUSTRALIA

TRACEY & WINTERBOURNE

[2009] FamCA 501

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Separation of siblings – Prioritisation of relationship between siblings with a shared biological parentage

Family Law Act 1975 (Cth)

APPLICANT:

Mr Tracey

RESPONDENT:

Ms Winterbourne

INDEPENDENT CHILDREN’S LAWYER:

Mr Rugendyke

FILE NUMBER:

NCC

1406

2007

DATE DELIVERED:

11 June 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

22 - 24 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berry

SOLICITOR FOR THE APPLICANT:

Peacockes

COUNSEL FOR THE RESPONDENT:

Ms McLennan

SOLICITOR FOR THE RESPONDENT:

Anne Murray & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Slater & Gordon

Orders

All previous parenting orders in relation to the children K born … June 2004 and Z born … November 2005 (“the children”) be discharged.
The children live with the father.
The child K be delivered to the father at his place of residence on a day to be agreed upon between the parties and failing agreement within fourteen (14) days.
The parties have equal joint parental responsibility for the children.
The children spend time with the mother:
5.1.Until the New South Wales August/September 2009 gazetted school holidays:
5.1.1.at the time of the delivery of the child K to the father in accordance with these orders:
5.1.1.1.in relation to the child Z, in O, New South Wales for three days from 9.00am to 5.00pm each day; and
5.1.1.2.in relation to K from 9.00am on the first day until 5.00pm on the third day;
5.1.2.at a time to be arranged between the parties during the first half of July 2009:
5.1.2.1.in relation to Z, in E, Queensland for two days from 9.00am to 5.00pm each day and from 9.00am on the third day until 9.00am on the fourth day; and
5.1.2.2.in relation to K, from 9.00am on the first day until 9.00am on the fourth day.
5.1.3.at a time to be arranged between the parties during the first half of August 2009:
5.1.3.1.in relation to Z in O for four days, from 9.00am on the first day to 5.00pm on the second day and from 9.00am on the third day until 5.00pm on the fourth day; and
5.1.3.2.in relation to K from 9.00am on the first day until 5.00pm on the fourth day.
5.2.As and from the New South Wales August/September 2009 gazetted school holidays:
5.2.1.one half of all school holidays at the conclusion of terms 1, 2 and 3 as agreed between the parties and in default of agreement for the second half of such holidays; and
5.2.2.one half of each Christmas school holiday period as agreed between the parties and in default of agreement:
5.2.2.1.for the second half of each alternate Christmas school holiday period commencing in the 2009/2010 gazetted New South Wales Christmas school holiday period.
5.2.2.2.for the first half of each intervening Christmas school holiday period commencing in the 2010/2011 gazetted New South Wales Christmas school holiday period.
5.3.Such other periods as the parties may agree.
Each party have telephone communication with the children when the children are in the other party’s care each day at reasonable times.
In the event that any of the children suffer any illness requiring medical attention or hospitalisation during any period the children are spending time with the mother then the mother shall immediately notify the father of such illness and the name of the medical practitioner or hospital to which the child or children have been taken.
The father:
8.1.Sign all documents and do all things necessary to:
8.1.1.authorise the school, schools or pre-school at which each of the children may from time to time attend:
8.1.1.1.to furnish the mother with copies of all school reports, notices and advices concerning:
8.1.1.1.1.the said children or either of them; and
8.1.1.1.2.any activity involving the said children or either of them;
and
8.1.1.2.to make available to the mother copies of any school photographs of the said children at the mother’s expense.
8.1.1.3.notify the mother immediately of:
8.1.1.3.1.any major illness suffered by the said children or either of them;
8.1.1.3.2.any hospitalisation of the said children or either of them;
and
8.1.1.4.make available to the mother copies of any medical report or reports that may be sent to the father in connection with such illness or hospitalisation;
and
8.1.1.5.authorise:
8.1.1.5.1.any hospital in which the said children or either of them may be admitted; and
8.1.1.5.2.any medical practitioner under whose care the said children or either of them may be
to give such information to the mother as she may request.
As and from the August/September 2009 New South Wales gazetted school holiday period, the mother collect the said children from the father at Y, Queensland at the commencement of each period they are to spend with the mother and the father collect the said children from the mother at the same location at the conclusion of such period.
Each party be responsible for the cost of their own travel and accommodation necessary to comply with these orders.
Each party keep the other party advised of their current residential address and telephone number and each party shall give the other party no less than 14 days notice of any intended change of residential address and telephone number.
Liberty be granted to each party to apply in the event of any difficulty in the implementation of these orders on seven days’ notice to the other party and the Court specifying the matters to be raised before the Court.
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.

NOTATION

I note that it was agreed between the parties that the point of changeover referred to in Order 9 be changed from G, Queensland, to Y, Queensland.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 1406 of 2007

MR TRACEY

Applicant

And

MS WINTERBOURNE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This matter is about where K, born in June 2004 (currently four years of age), and Z, born in November 2005 (currently three years of age) should ordinarily live in the future. K currently lives with the mother in E, Queensland, while Z resides with the father and his partner, Ms W, in O, New South Wales. The distance between the two towns is approximately 20 hours by car.
The father is seeking that the children reside with him, while the mother is seeking that both children reside with her or in the alternative, that K remain with her and Z live with his father, so one issue with which I am confronted is whether the children should remain separated from one another or whether they should be reunited, and if so, with whom they should live. That question has to be answered by considering which proposal is in the children’s best interest.
The hearing of this matter took place over four days. The first day of hearing occurred on 14 October 2008 and the evidence was subsequently completed on 22, 23 and 24 April 2009.
I note at the outset the young age of the parties involved in this case. The mother was born in March 1989 and is currently 20 years of age. The mother had only just turned 15 when she had K. The father was born in February 1987 and is currently 22 years of age. The father’s current partner, Ms W, was born in July 1991 and is currently 17 years of age.
On the father’s evidence the parties began seeing each other in or about April 2003 and commenced a domestic relationship on or about 1 July 2004. They continued living together for approximately six months until 1 January 2005 and then separated, in the sense that they were no longer sharing a house. However, the father states that the parties continued to see each other from time to time and maintained a sexual relationship. The parties resumed cohabitation in or about August 2005 until final separation occurred in or about May or June 2006.
The mother’s evidence differs from the father’s in several respects. She asserts that she and the father began their relationship in April 2003 and commenced living together in August 2003, maintaining this domestic arrangement until August 2004. The mother states that the parties separated in August 2006 but continued a casual sexual relationship until December 2006 when the relationship ended completely. Not a great deal turns on these differences, but for reasons explained below, I prefer the father’s version.

Other children

Following the ending of the parties’ relationship, both the mother and father became involved with new partners with whom they have children.
The mother was in a relationship with Mr M, born in 1975 (currently 34 years of age) for a period of approximately two years from the end of 2006. Both the mother and Mr M describe this relationship as having been on an “on and off” basis. There is one child of that relationship, J, born in July 2007 (currently one year and 10 months of age), who resides with the mother. Although the relationship has ended, it appears that the parties continue to communicate amicably and Mr M sees both J and K regularly and is actively involved in their lives.
The father is currently in a relationship with Ms W, with whom he has one child, H, born in July 2008 (currently 10 months of age). Ms W became pregnant when she was 16. The father resides with Ms W, H and Z in O, New South Wales.
Both Mr M and Ms W gave oral evidence during the hearing.

APPLICATIONS

The father

These proceedings were commenced by the father by way of an Application for Final Orders filed in the Local Court of New South Wales on 15 May 2007. Minutes of Order Sought by the Father were tendered at the hearing and became Exhibit H. The orders sought are in the following terms:
1.THAT all previous parenting orders in relation to the children [K] born […] June 2004 and [Z] born […] November 2005 the children of the parties be discharged.
2.THAT the said children live with the father.
3.THAT the child [K] be delivered to the father at his place of residence on (blank)
4.THAT the parties have equal joint parental responsibility for the said children.
5.THAT the said children spend time with the mother:
a.      Until the New South Wales August/September 2009 gazetted school holidays:
i.At the time of the delivery of the child [K] to the father in accordance with these orders:
(1)In relation to the child [Z], in [O] New South Wales for three days from 9.00am to 5.00pm each day; and
(2)in relation to [K] from 9.00am on the first day until 5.00pm on the third day;
ii.At a time to be arranged between the parties during the month of June 2009:
(1)In relation to [Z], in [E] Queensland for two days from 9.00am to 5.00pm each day and from 9.00am on the third day until 9.00am on the fourth day; and
(2)In relation to [K], from 9.00am on the first day until 9.00am on the fourth day.
iii.At a time to be arranged between the parties during the month of July 2009:
(1)In relation to [Z] in [O] for four days, from 9.00am on the first day to 5.00pm on the second day and from 9.00am on the third day until 5.00pm on the fourth day; and
(2)In relation to [K] from 9.00am on the first day until 5.00pm on the fourth day.
b.    As and from New South Wales August/September 2009 gazetted school holidays:
i.one half of all school holidays at the conclusion of terms 1, 2 and 3 as agreed between the parties and in default of agreement for the first half of such holidays; and
ii.one half of each Christmas school holiday period as agreed between the parties and in default of agreement:
(a)for the second half of each alternate Christmas school holiday period commencing in the 2009/2010 gazetted New South Wales Christmas school holiday period.
(b)for the first half of each intervening Christmas school holiday period commencing in the 2010/2011 gazetted New South Wales Christmas school holiday period.
c.    Such other periods as the parties may agree.
6.THAT each party have telephone communication with the children when the children are in the other party’s care each day at reasonable times.
7.THAT in the event that any of the children suffer any illness requiring medical attention or hospitalisation during any period the children are spending time with the mother then the [sic] she shall immediately notify the father of such illness and the name of the medical practitioner or hospital to which the child or children have been taken.
8.THAT the father:
a.    sign all documents and do all things necessary to:
i.authorise the school, schools or pre-school at which each of the children may from time to time attend:
(1)to furnish the mother with copies of all school reports, notices and advices concerning:
(a)the said children or either of them; and
(b)any activity involving the said children or either of them;
and
(2)to make available to the mother copies of any school photographs of the said children at the mother’s expense.
b.    notify the mother immediately of:
i.any major illness suffered by the said children or either of them;
ii.any hospitalisation of the said children or either of them;
and
c.    make available to the mother copies of any medical report or reports that may be sent to the father in connection with such illness or hospitalisation;
and
d.    Authorise:
i.any hospital in which the said children or either of them may be admitted; and
ii.any medical practitioner under whose care the said children or either of them may be
to give such information to the mother as she may request.
9.THAT as and from the August/September 2009 New South Wales gazetted school holiday period, the mother collect the said children from the father at [G] Queensland at the commencement of each period they are to spend with [sic] mother and the father collect the said children from the mother at the same location at the conclusion of such period.
10.THAT each party be responsible for the cost of their own travel and accommodation necessary to comply with these orders.
11.THAT each party keep the other party advised of their current residential address and telephone number and each party shall give the other party no less than 14 days notice of any intended change of residential address and telephone number.
12.THAT liberty be granted to each party to apply in the event of any difficulty in the implementation of these orders on seven days’ notice to the other party and the Court specifying the matters to be raised before the Court.
I note that it was agreed between the parties that the point of changeover referred to in Order 9 be changed from G, Queensland, to Y, Queensland.

The mother

The mother filed a Response to an Application for Final Orders at the Local Court of New South Wales on 1 June 2007. On the final day of the hearing, counsel for the mother handed up Minutes of Orders Sought by the Mother. The orders sought are in the following terms:
1.That all previous orders relating to the children [K] born […] June 2004 and [Z] born […] November 2005 (‘the children’) of the parties be discharged.
2.That the parties have equal shared parental responsibility for the said children.
3.That the child [Z] be delivered to the mother at her place of residence on (blank) and thereafter live with the mother.
4.That the child [K] live with the mother.
5.That the children spend time with the Father by agreement between the parties and failing agreement at the following times:
a.        Commencing at the June/July school holidays in 2009 from 3pm on the first Saturday of the first week of school holidays until the same time on the second Saturday of the school holidays when the father must collect the children from [Y] in the state of Queensland and return the children to the same changeover location.
b.      The arrangement in a. to be continued during every gazetted school holidays.
For the purposes of the mother spending time with the child [Z] prior to complete relocation to the mothers [sic] care and residence, the following orders are sought:
6.That the mother collect the child [Z] from the father’s residence in [O] New South Wales from a reasonable time in order to spend 2 hours on the first day increasing to half a day for the rest of the week. This is to be increased to overnight contact.
7.That the father collect the child [K] from the mother’s residence in [E] from a reasonable time in the morning in order to spend time with the child. This is to occur over a period of one week.
8.Orders 6 and 7 are to commence in the next gazetted school holidays being the June/July holidays 2009.
9.Orders 6-8 are to remain operative until 31^st December 2009, after which the order sought in Order 5.(b) is to commence and remain operative until further order.
IN THE ALTERNATIVE
10.That the child [K] continue to live with the mother.
11.That the child [Z] continue to live with the father.
12.That the mother spend time with [Z] as follows:
i.that the mother collect the child [Z] from the father’s residence in [O] New South Wales from a reasonable time in order to spend 2 hours on the first day increasing to half a day for the rest of the week. This is to be increased to overnight contact. This order to remain operative until 31^st December 2009 allowing for a gradual development of the relationship between the mother and [Z].
13.That the [sic] each party spend time with the child not in [sic] living with them as agreed between the parties and failing such agreement,
i.one half of all school holidays at the end of terms 1, 2 and 3;
ii.the parties must give each other one week’s written notice of the days when they proposes [sic] to spend such time with the child and of the times when they proposes [sic] to collect and return the child on those occasions;
iii.those periods must not include the Christmas period hereafter provided fro [sic], nor the Mother’s/Father’s day weekend nor a birthday of either child, unless the period starts or ends at 12 noon on that birthday.
iv.from 3pm on 12 December in each even-numbered year until 3.00 pm on Christmas Day that year;
v.from 3.00pm on Christmas day in each odd-numbered year until the same time on the following 8^th January,
14.That each party have telephone communication with the children when the children are in the other party’s care every second day at 6pm with the parent not with the care of the child/children to initiate the telephone call.
15.That each party must each [sic] keep the other party informed of:
(a)    all significant events that shall occur when either child is with that party regarding the health and welfare of that child; and
(b)    his or her residential address and of all land and mobile telephone numbers that parent shall from time to time be using and of any changes in such data, which that parent must notify to the other parent within 7 days of change.
16.That the parents are each entitled to have access to and receive all written, electronic and other information, reports and data from all schools, medical and allied health practitioners, hospitals and other health and welfare agencies and professionals that concerns the children’s education, care, health and welfare.
17.That each party be responsible for their own costs in transporting the children for the purposes of spending time with the other party.
18.That liberty be granted to each party to apply in the event of any contravention of the terms of these orders on seven days’ notice to the other party and the Court specifying the matters to be raised before the Court.

The Independent Children’s Lawyer

During final submissions the Independent Children’s Lawyer indicated that he supported the orders being sought by the father in Exhibit H, subject to the place of changeover referred to in Order 9 being varied from G, Queensland, to K, Queensland, and also subject to the changeover times referred to in Order 5 being confirmed as New South Wales times.

PREVIOUS ORDERS

The parties were previously involved in proceedings in Local Court in relation to K. On 13 May 2005 that Court made final orders in accordance with Minutes of Terms of Settlement filed on 5 May 2005 and signed by the parties. Those orders were in the following terms:
1.That the child of the relationship, namely [K] born […] June 2004 referred to as the child reside with the Applicant Mother.
2.That the Applicant Mother have sole responsibility for making decisions about the day-to-day [sic], welfare and development of the child whilst the child is residing in her care.
3.That the Respondent Father have sole responsibility for making decisions about the day-to-day [sic], welfare and development of the child whilst in his care.
4.That the Applicant Mother and Respondent Father have joint responsibility for the long-term care, welfare and development of the child.
5.Whilst the Applicant Mother resides in the state of Queensland, the Father have contact with the child as follows:
(a)One (1) week block every eight (8) weeks.
(b)At any other time as agreed between the parties.
6.Whilst the Applicant Mother resides in a one hundred (100) kilometre radius from the city of [O] in the state of New South Wales, the Father have contact with the child as follows:
(a)as agreed between the parties;
(b)failing agreement between the parties, every second weekend from 5:00pm Friday to 5:00pm Sunday.
8.That for the purposes of contact in Order 5, the Applicant Mother is responsible for delivering the child to the Respondent Father’s residence at the commencement of contact and the Applicant Mother is to collect the child from the Respondent Father’s residence at the conclusion of contact.
9.That for the purposes of delivering and collecting the child, the Respondent Father will pay the cost incurred in the traveling [sic] from the Applicant Mother’s residence to the Respondent Fathers [sic], unless he is able to collect the child himself.
10.That each party is to keep the other informed of any medical attention or hospitalization that the child may require.
11.That each party notify the other in writing of their intention to change their place of residence no later than twenty-eight (28) days prior to any change of residence.
12.That pursuant to Section 65DA(2), the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out below and are included in these orders.
Further proceedings took place in the Local Court in respect of Z. On 7 June 2007 the Court made orders in the following terms:
1.The child [Z] born […] November 2005 (hereinafter referred to as “the child”) live with the Applicant Father.
2.That the Applicant Father and Respondent Mother shall have equal shared parental responsibility for the long term care, welfare and development of the child including major long term issues.
3.That the Applicant Father is to have the sole responsibility for making decisions about the day to day care, welfare and development of the child except during any periods of time when the child is spending time with the Respondent Mother who will then have the sole responsibility for making those decisions.
4.That the Respondent Mother spend time with and communicate with the child as agreed between the parties but failing such agreement the Respondent Mother is to spend time with and communicate with the child as follows:-
a)Every second weekend from 5.00 pm Friday to 5.00 pm Sunday with the Respondent Mother to collect the children from and return the children to the Applicant Father’s residence.
b)At such other times as agreed between the parties.
c)Liberal telephone contact as agreed between the parties but failing agreement each Wednesday between the hours of 5.00 pm and 7.00 pm with the Respondent Mother to initiate such telephone call and the Applicant Father to have the child ready and available to take such telephone call.
5.That the Applicant Father do all acts necessary to authorise any school at which the child may attend:-
a)To furnish both parents with copies of all school reports, notices and advices concerning the child and any activities involving the child.
b)To make available to both parents order forms for school photographs of the child.
6.That the parties notify the other if the child is injured, required medical attention and/or is ill as soon as practicable.
7.That each party notify the other in writing of any changes to contact/ residential details at least fourteen days prior to any such change.
8.Liberty is granted to either party to apply on seven days notice for orders for implementation, interpretation or enforcement of these orders.

DOCUMENTS READ

The following evidence has been read by me in these proceedings:
17.1.Affidavit of the father sworn 11 May 2007
17.2.Affidavit of the father sworn 5 June 2007
17.3.Affidavit of the father sworn 25 March 2009
17.4.Affidavit of Ms W sworn 26 March 2009
17.5.Affidavit of the mother sworn 31 May 2007
17.6.Affidavit of the mother sworn 18 March 2008
17.7.Affidavit of the mother sworn 23 March 2009
17.8.Affidavit of the mother sworn 15 April 2009
17.9.Affidavit of Mr M sworn 31 March 2009
17.10.Report of Family Consultant Ms L dated 18 December 2008
17.11.Exhibits tendered during the hearing, including written statements by Ms KM and the mother’s sister.

SHORT HISTORY

The applicant father, Mr Tracey, was born in February 1987 and is 22 years of age. He resides in O, New South Wales in rented accommodation with his partner Ms W and is employed by Ms W’s father as a builder.
The respondent mother, Ms Winterbourne, was born in March 1989 and is 20 years of age. She currently resides in E, Queensland and is not in paid employment.
The parties commenced a relationship in approximately mid-2003. They did not marry.
K was born in June 2004. She is currently four years of age.
The parties separated from January 2005 to August 2005.
Z was born in November 2005. He is currently three years of age.
The parties separated on a final basis in approximately April 2006.
On 11 May 2007 the father filed an Application for Parenting Orders in respect of the two children in the Local Court.
The hearing of this matter took place over four days on 14 October 2008, 22 April 2009, 23 April 2009 and 24 April 2009.

CHRONOLOGY

In 1975 Mr M, the mother’s former partner, was born.
The father was born in February 1987.
The mother was born in March 1989.
In July 1991 Ms W, the father’s current partner, was born.
The parties commenced cohabitation in mid-2003 (I rely upon the evidence in the Family Report). The father’s case outline states that the parties commenced cohabitation on 1 July 2004.
K was born in June 2004.
The parties separated in January 2005.
Parenting orders were made by consent in the Local Court in relation to K on 13 May 2005. According to the orders, K was to live with the mother and spend defined time with the father.
The parties resumed cohabitation in August 2005.
Z was born in November 2005.
The Family Report states that the parties finally separated in April 2006. Following separation, the mother moved with the children to V, Queensland.
The mother commenced a relationship with Mr M in September 2006.
In late 2006 or early 2007 the father moved to O.
On 16 January 2007 the mother left Z with the father and the parties signed a letter confirming this arrangement, as well as arrangements for Z to spend one week every month with the mother and for K to spend one week every month with the father.
On 16 March 2007 the mother left K with the father, who then retained K in his care.
The father and Ms W commenced cohabiting in approximately March 2007.
On 3 May 2007 the mother filed an Application for Recovery Order in the Federal Magistrates Court.
On 11 May 2007 the father filed an Application for Parenting Orders in respect of the two children in the Local Court and an Application in a Case seeking interim orders in relation to Z.
On 16 May 2007 the father returned K to the mother at the Federal Magistrates Court on the first return date of the recovery application.
On 13 June 2007 interim orders were made in the Local Court as sought by the father in his Application in a Case in relation to Z. The proceedings were then transferred to the Federal Magistrates Court.
J (a child of the mother and Mr M) was born in July 2007.
On 8 October 2007 the mother and Mr M rented premises at E, Queensland. They subsequently received notices concerning arrears of rent on 27 March 2008 and 16 April 2008.
On 6 June 2008 the father moved to rented premises at O, New South Wales.
H (a child of the father and Ms W) was born in July 2008.
On 14 October 2008 orders were made in the Family Court at Newcastle for the appointment of an Independent Children’s Lawyer.
In the period of 25 - 28 October 2008, the mother went on what was referred to during the hearing as a bender. On the morning of 28 October 2008 the mother made a complaint to police that she had been sexually assaulted. The mother subsequently withdrew the complaint.
On 19 October 2008 K said to Ms W that she had been sexually assaulted by Mr M’s two sons.
On 13 November 2008 the managing agent of the father’s rental premises wrote to the father in relation to a noise complaint received from a neighbour.
On 22 January 2009 K commenced school.
Since separation, the mother has had numerous different residences.

RICE & ASPLUND

There are in place final orders relating to both K and Z. The 2005 orders were made prior to Z’s birth.
There was no specific focus during the hearing as to whether or not there had been a significant and substantial change in circumstances since the orders in respect of Z were made on 7 June 2007. The father’s application in effect only seeks to change the 2005 orders and not the 2007 orders, whereas the mother seeks to change the 2007 orders. The mother did not explain why it is that the 2007 orders should be changed, although she could point to the family consultant’s strong view that the children should grow up together.
There have been significant changes in the circumstances of the parties since both lots of orders were made. They have each parented a further child to another person and it has been alleged that the mother has been involved in serious behaviour that impacts upon her parenting capacity. Based on the evidence I have in this case I have no difficulty in finding that it is in the best interests of both children, given significant changes that have taken place since previous orders were made, to reconsider what are currently the best arrangements that could be put in place for their future care.

CREDIT

The mother

At times, the mother was not a credible witness. Her presentation in court was unimpressive and she seemed willing to vary her position as it suited her. On at least two occasions she gave evidence that was clearly inconsistent with evidence previously given by her. For example, she stated to me on 14 October 2008 that she used ecstasy on 19 September 2008. When giving further oral evidence on 23 and 24 April 2009, the mother not only denied having used ecstasy on that occasion, but also denied ever having told me otherwise. In addition, on 14 October 2008 the mother offered an explanation as to why she believed that Ms KM and her sister Ms CR Winterbourne had made statements criticising her behaviour. On 23 and 24 April 2009, she advanced an entirely different explanation for which she had no independent evidence and conceded that on the earlier occasion, she had probably made up whatever it had occurred to her to say.
Another matter weighing against the mother’s credit is that she was prepared to tell Ms L on 8 December 2008 that her relationship with Mr M was long term and stable, despite only being back with Mr M for two weeks, having previously been separated from him. Ms L stated that the mother informed her that she and Mr M had plans to buy a house together. Mr M’s evidence is that he and the mother separated approximately 6-7 weeks after the interview. The mother states that separation occurred later, in approximately late February 2009. I accept Mr M’s evidence on this point. I find that the mother sought to present herself to Ms L as being in a stable relationship in order to assist her in these proceedings, and that she misrepresented the true state of her relationship with Mr M.
I do not accept that the mother was being candid about the amount of alcohol (and other substances) she consumed on W Beach in a 23 hour period commencing at 6pm on Friday 26 September 2008.
I do not accept her evidence that she has only ever been out on one “bender”.
The mother gave inconsistent oral evidence as to whether or not it was her view that her drink was spiked prior to the alleged sexual assault on 28 September 2008.
The cumulative effect of these matters leads me to a conclusion that I cannot accept the evidence of the mother where it conflicts with other evidence before me.

The father

The father was generally impressive and gave his answers in a straightforward manner. He demonstrated a willingness to make concessions that were against his interests. For example, he conceded that after becoming aware on 19 October 2008 that K had made a comment to Ms W indicative of possible sexual abuse, it was his wish that K remain in O, and that it suited him not to immediately inform the mother of the allegations and subsequent medical examination. I did not gain the impression that he was trying to gild the lily in any respect, although there were some minor points on which his evidence contradicted that of Ms W. For example, when being asked questions about a noise complaint made against him on 10 November 2008 by an anonymous neighbour, he denied that bad language ever occurred at his premises and also denied that he ever had friends over except on two occasions. Where any inconsistencies arise between the evidence of the father and that of Ms W, I accept the evidence of Ms W.

Ms W

Ms W impressed me as a credible witness. She was clear and concise in her evidence and seemed to be making an effort to present the true position. Despite her young age, she seemed mature and responsible in her outlook.

Mr M

Mr M appeared to me to be a credible witness. He was forthright in his evidence and did not seem to be attempting to obfuscate matters.

SEXUAL ABUSE ALLEGATIONS

An important issue aired during the trial related to possible sexual abuse of K at the hands of Mr M’s sons L and V. This issue was explored in detail, not only in the sense of the precise nature of K’s disclosures and the extent of any physical evidence of abuse, but also in the manner in which the father and Ms W responded to the situation.

Evidence of Ms W

Ms W’s evidence is that on 19 October 2008 she was bathing K when K complained that the soap was stinging her genital area. Ms W noticed that K’s vagina was very red and that there was a red inflamed scratch like that of a fingernail on the inside of her labia. K then stated that L and V (Mr M’s sons) had touched her “flossy” (K’s word for vagina), that they had put their fingers in her and that they had hurt her.
Ms W stated that following this disclosure, she walked out of the bathroom, took a breath and composed herself, went back into the bathroom, got K out of the bath, helped her dry and dress herself and then rang her (Ms W’s) mother to ask her advice as to what she should do. Ms W’s mother, who apparently works for the NSW Department of Community Services (“DoCS”), advised her to inform the police, which she accordingly did. The police then advised Ms W and the father that K needed to be taken to the hospital to be examined.
Ms W stated that she and the father subsequently took K to O Hospital where she was initially spoken to by a child sexual assault worker in the company of Ms W. K then repeated the disclosure to the child sexual assault worker, who informed Ms W that she was legally obligated to report the matter to DoCS. K was then examined by a medical practitioner who informed Ms W following the examination that K had a scratch on the outside of her vagina that was serious and needed to be treated with cream, and that she also had internal scratches. Ms W also stated that she was told by the examiner that little girls are able to scratch themselves and that the scratches found were not necessarily indicative of sexual assault, but that the matter still had to be reported.

Evidence of the father

The father’s evidence on this matter is generally in accordance with the account given by Ms W.
The father acknowledged that he did not witness either the scratch on K’s vagina or her comments about L and V but was told of them second-hand by Ms W. He stated that he got Ms W to ring her mother who advised Ms W to report the matter to the police. The father and Ms W went to the police station, where the officer or officers to whom they spoke made notes of the matter and advised them that it would be reported to the Joint Investigative Response Team (JIRT).
The father stated that the next day, K complained of soreness, and as a result he and Ms W took K to O Hospital to obtain some cream. I note that in this respect the father’s account differs from that of Ms W, who stated that it was the police who advised them to take K to the hospital to be examined. However, little turns on this point, and I do not regard it as particularly significant.
The father stated that K underwent an examination at the hospital. It appears that the father was not present during either the initial discussion between K and the child sexual assault worker or the subsequent examination by a medical practitioner.
The father stated that he then contacted the Queensland child welfare authority to notify them of what K had disclosed to Ms W and to obtain advice. He stated that he did not tell them anything in relation to the medical finding of internal scratching on K’s vagina, and that he did not know who relayed that information to DoCS. Similarly, the father stated that he was not the person who gave the E Child Safety Service Centre the information contained in the dot points on pages 7 and 8 of Exhibit A.

File note of the E Child Safety Service Centre dated 23 October 2008

Pages 7 and 8 of Exhibit A constitute what appears to be a file note created by an employee of the E Child Safety Service Centre on 23 October 2008. The note is in the following terms:
“On 23 October 2008 the [E] Child Safety Service Centre received the following information –
·On 19 October 2008 whilst [K] was in the bath (at her father’s home in NSW) she started crying and said she was sore and that [V] and [L] put their fingers inside her.
·The notifier is aware that [K’s] vaginal area is sore, red and has a cut.
·Whilst shopping with her father [K] said “cock, cock, cock.”
·Whilst on the toilet she said “oh yeah oh yeah that’s the way I like it.”
·[K] “[T] put his cock in me while mum was at the pub.”
·Last night out of the blue [K] said “do you want me to take my clothes off?”
·There is no information about whether the mother of the subject child is aware of the alleged harm to [K].
·There is also no information to indicate how often the boys visit [K] and where they live.
On 24 October 2008 the [E] Child Safety Service Centre was informed that [K’s] mother and [J] are in NSW for at least another week. The department in NSW ([Ms S]) is aware of this.”

In oral evidence the father stated that dot point 3 erroneously indicated that he was with K when she said “cock, cock, cock.” Ms W confirmed that this was in fact said to her by K and the father was not present. In relation to dot point 5, Ms W stated that K had in fact said “near me” instead of “in me,” and that that piece of information as recorded in Exhibit A was incorrect. Ms W stated that when she reported the bath incident to her mother, she also reported sexual comments made by K on other occasions, specifically “cock, cock, cock.” Ms W stated that she could not remember telling her mother about dot point 4, and that she did not tell her mother about dot point 6.
It was initially unclear during the hearing exactly how the E Child Safety Service Centre obtained the above information. The father stated that the first two dot points were information that both he and Ms W provided to the police following K’s initial disclosure. The father stated that the remaining dot points were not provided to the police at that initial interview, and that although he was aware of some of that information (specifically dot points 3 to 5) from conversations with Ms W, those statements were made by K to Ms W when he was not present. I infer that it was Ms W’s mother who provided the E Child Safety Service Centre with the information contained on pages 7 and 8 of Exhibit A after receiving the phone call from Ms W on the night of the bath incident.

Interview with Ms D

Exhibit D is a two page handwritten account of an interview conducted between K, Ms D (who appears to be a child safety case officer) and Mr N of the E Police Department. The interview was conducted on 12 November 2008. The relevant portion of the document is as follows:
-Cut on my flossy – Hoo Hoo
-Tripped over and cut it
-Dr gave me a teddy for being brave
-Got a lot of needles
-Didn’t hurt me when I got
-Car run me over – got a cut and it was bleeding
-My Hoo Hoo was bleeding
Subsequent to this interview it is clear that the authorities decided not to pursue the matter further. There is certainly nothing in the note of the interview that would suggest that K repeated her disclosure or raised anything indicative of possible sexual abuse. In fact, she offered a different explanation as to how she received the cut on her vagina. On balance, I am satisfied that there was no unacceptable risk that K was sexually abused and that there is no continuing risk in that regard.

The Response of the father and Ms W to the bath incident

Distinct from any consideration of whether or not K was in fact sexually abused by L and V, the action taken by the father and Ms W following what I will for convenience’s sake refer to as the bath incident is of significance. It is clear that the mother was not immediately informed of the statements made by K and the possibility of her having been sexually abused. The father and Ms W offered differing explanations as to why that was.
The father gave several reasons for withholding the fact of the disclosure from the mother. He stated that he was mainly concerned with telling the police (and by implication, immediately telling K’s mother was not a priority for him). He also stated that he did not want K to be questioned about it when she returned home. He conceded that he did not want K to go back to Queensland following the disclosure she had made, even after it became clear that the medical examination had revealed no evidence of K having been assaulted, and that he wanted her to remain living with Ms W and himself in O. He acknowledged that the mother would have been upset if K had not returned home, and that similarly it would have been a sudden change for both K and her half-sister J. The father also conceded that he did not immediately inform the mother about the bath incident because it suited him not to do so, and that he hoped that as a result of the investigation into the allegations he would be allowed to retain K in his care.
I found the father’s evidence in this regard to be credible. He was quite willing to concede the fact that he wished K to remain with him. I do not believe that he wished to retain K in his care in any attempt to sever or disrupt the relationship between K and her mother, or in an attempt to use the allegations as a means of having K ordinarily live with him.
Ms W stated that she did not immediately notify the mother about the bath incident because she would rather discuss it with her face to face. Ms W stated that, in her view, had the mother been informed of the bath incident over the telephone, the mother would have become cranky, gone to O to collect K and told the father and Ms W that they were not allowed to see her again. Ms W also stated that the mother would have accused her of lying, an accusation that she makes frequently. I accept Ms W’s explanation as to why the mother was not immediately informed. It is clear that as soon as the mother could be told of the matter face to face, that was done.
It is the mother’s case that following the bath incident a deliberate decision was taken by the father and Ms W to withhold K’s disclosure (and the subsequent medical examination) from the mother and that it illustrates an unwillingness to involve the other parent in serious matters relating to the child’s welfare. However, I find that the steps taken by the father and Ms W were appropriate. They contacted precisely the person whom one would expect them to contact, namely Ms W’s mother, who was a DOCS employee and therefore ideally placed to render advice to the young couple.
Counsel for the mother drew my attention in submissions to the seriousness of allowing a child of K’s age to undergo a sexual assault examination; however I note that that examination was preceded by an interview between K and a sexual assault counsellor. I infer that K was not subjected to the examination at the whim of the father or Ms W, but upon the recommendation of the counsellor to whom K repeated the disclosure made earlier to Ms W.
Neither the father nor Ms W appeared to me to be eager to have allegations of sexual abuse substantiated as a means of retaining K in their care. Ms W gave evidence that she was very pleased to be told that K had not been sexually abused. She also stated that at the time of the bath incident, she was conscious of the fact that K belongs at her mother’s and needed to return there. Although the father stated that even after being informed that there was no evidence of sexual abuse he preferred to believe in the veracity of K’s comments to Ms W and wished K to remain in O, I am of the view that he genuinely held those views.
I take into account the young age of both the father and Ms W and I find that they acted appropriately following K’s initial statements on 19 October 2008. There is certainly nothing in their conduct that would lead me to a conclusion that they would be incapable or unwilling to facilitate the relationship between the mother and K.

THE “BENDER” AND OTHER SIMILAR OCCASIONS

Of some significance is an incident that occurred in September 2008 when the mother went on what was referred to during the hearing as a “bender.” The evidence regarding this incident comes from oral evidence as well as a statement written by the mother to her real estate agent describing the events of the bender. That statement forms part of Exhibit A.

Written statement

According to the statement written by the mother following the event, the bender began at 5:30pm on Thursday 25 September 2008 and continued over Friday, Saturday and Sunday. In light of the amount of time that was spent examining this incident during the hearing, it is worthwhile setting out the mother’s written chronology in full.
To whom it may concern,
Thursday
5.30pm – I dropped [CR], [KM] and my two girls [K] and [J] of [sic] down at the bus station at Centro, and then I came home where [AN] and [NI] were to get ready to go to [NI’s] place to have a few drinks.
7.00/7.30pm – I went to [MH’s] place and picked him up and on the way home called into the bottleo we came back to my place [address] had a few drinks [MH] was the sober driver.
8.30pm – went and picked [ST] up [AN’s bf] from the gym then I think we came back to mine again, went and seen one of [NI’s] friends at her house [AN] didn’t like her so [MH] dropped her and her bf of [sic] back at their house and came back to [NI’s] friends I think her name was [AR]? Stayed there for a while.
11.00pm – went to [NI’s] it was boring so [NI] me [MH] [AR] two other girls of [NI’s] friends that I sort of know I’ve meet them a couple time ones name was [TY] came to my place as well then [MH] went back and picked up 4 of their friends that were males I don’t know them and we stayed at my place drinking.
Friday
1.00am – I finally got the boys to leave because they were to [sic] noisy. I had been trying to get them to leave for a while but they wouldn’t listen and I got a little scared so I said I was going out so they would all leave [MH] dropped them of [sic] somewhere then we went to the fiddler.
1.30 – went to the fiddler talked to a few people then picked up [LE] from the fiddler coz she was gunna stay at my place and this guy [PY] I don’t know him asked if he could grad [sic] a lift coz he was staying in […] drive which is around the corner from me so being polite I said ok.
3.00am – got back home got out of the car this guy asked to go to the toilet I said ok but then you have to go [LE] was down stairs listen to soft music and [MH] and I went up stairs we were sitting on the bed talking then all of a sudden [MH] and I heard my car start we run down stairs but it was gone I asked [LE] what happened and she said that the guy grab my keys of [sic] the bench in the kitchen and took off. I came inside crying then not long after we heard my car come back we could hear the flat tryer [sic] we all run out the front and there it was smashed, this [PY] guy got out of the driver’s seat I yelled at him what did you do to my car I punched him and he run off, we ran the police.
4.30/5.00am – the police came around and took statements from me [MH] and [LE]
7.00am – went for walk to beach with [LE] to relax then went to [NI’s] told her what happened then [NI] [LE] and [AR] and [TA] bran [sic] me home
11.00 – went up stairs to [MH] we walked to [EL] rang his dad and he picked us up and we went back to [MH’s] to bed
6.00pm – woke up went to [TN’s] with [MH] then [MH] [CL] [TN] and I went to [W] beach for the night to go and see [TN’s] mates from Brisbane.
Saturday
5.00pm – left [W] beach to come home.
7.00pm – got back to my place got dressed then walked to [EL] shops to get smokes and called a cab went to [AN’s]
8.00pm – got to [AN’s] [AN] her bf and I went to McDonalds got a feed went to the bottleo then bak [sic] to [AN’s] had a few drinks
Sunday
12.30 – [AN] and her bf were fighting I was very upset about everything that happened because of the car and my wallet and phone was stolen as well so I left and went to [SV]
1.15 – left [SV] coz I was drunk was going back to [AN’s] but don’t know what happened woke up in the bushes sore and half naked at about 2.30 run to [AN’s] told her what happened she ran [sic] the police.
4.00am – police took me to hospital to get checked to see if I was sexually assaulted.
6.30am – police took me bak [sic] to [AN’s] I called a cab came home got changed had a coffee with the next door neighbour then went to [DO’s] and cried told her what happened then went to [MH’s].
12.00pm – came home went to bed.
Monday
9.00am – woke up cried ran [sic] mum she yelled at me so I cried more then had brekkie started to clean up the kitchen and my dishes then the realest came at 10.30am.
I am very sorry for everything I’m not usually like this but when my car wallet and phone was stolen I just went off the rails coz I was so upset confused and angry then everything just seemed to get worse I am still very upset and confused I just feel so alone right now and don’t know what to do. I am a good tenant tho and I can grantee [sic] that this will never happen again as I am no longer socializing with anyone I really hope I don’t lose this house I am very sorry.

The mother’s evidence

The mother was taken through the events of the bender in detail during her oral evidence. Her account is generally in accordance with her written statement. There are however several aspects of her evidence that lead me to conclude that she was not being entirely forthright. For example, her statements as to her level of alcohol and drug consumption over the period of the bender.
I note that in relation to the 23 hour period from 6:00pm Friday until 5:00pm Saturday which the mother spent on W Beach with three male friends, the mother’s evidence is that she drank a four-pack of cruisers over that period. She stated that her male friends were drinking rum, which she does not drink, and that there was no bar at the section of the beach where they were. She also stated that there was no other substance abuse going on over this period. Given the level of alcohol consumption that preceded and followed this 23 hour period, which falls in the middle of the bender, I find it difficult to accept the mother’s evidence on this point. I find that she consumed more alcohol at W Beach than she was willing to admit to.

Drug use

While there is no mention of drug use in the mother’s written statement, in oral evidence the mother did admit to using recreational drugs over the period of the bender. She stated that she took one ecstasy tablet on the night of her friend’s 21^st birthday party, which according to her written statement was Thursday 25 September 2008.
Exhibit A contains a file note created by NSW DOCS worker Ms R on 24 October 2008. The file note refers to a telephone call made by Ms R to Ms I, a caseworker at Child and Safety Queensland, in which Ms I referred to an interview that she had recently conducted with the mother, “who admits having 3 day benders and leaving the children with other carers, she did not deny drug and alcohol abuse.” In oral evidence the mother stated that she had told the interviewer of one 3 day bender, and that if the file note refers to more than one bender, then that is an erroneous note.
I do not accept the mother’s evidence on that point, as it contradicts other statements made by the mother as well as other evidence that is before me. It seems clear that there were at least two separate occasions on which the mother went out with friends and consumed alcohol and/or drugs while leaving K and J in the care of others. The second occasion took place on 19 September 2008 and is dealt with in the statements of Ms KM and the mother’s sister Ms CR Winterbourne.
The mother stated in oral evidence on 23 and 24 April 2009 that she had gone out on one occasion prior to the bender, and that she drank alcohol but did not take recreational drugs at that time. The question of the mother’s drug use on the previous occasion was the subject of evidence before me on 14 October 2008 (page 12 of transcript):
HIS HONOUR: Let’s just go to a couple of the specific things that were said. Do you remember whether or not you went to a club on 19 September which was a Friday night about three weeks ago?
[THE MOTHER]: Yes, I did.
HIS HONOUR: It’s reported that you took some ecstasy tablets on that occasion.
[THE MOTHER]: No, that’s not true.
HIS HONOUR: It’s said that you went back to [CR’s] place.
[THE MOTHER]: Yes.
HIS HONOUR: And that there were men there.
[THE MOTHER]: Yes, she had a house full. Like she had a house full. I (indistinct) and there was at least maybe ten people there.
Further on, at page 14 of the transcript:
HIS HONOUR: Is that [KM]? Yes, [KM], all right, okay. Now was [KM] – [KM] also reports in her statement that she saw you on 19 September with this fellow having a sexual encounter with the fellow in front of [K]. So are they both wrong, are they?
[THE MOTHER]: Yes. Well, we had been doing some “e” because we all went back to [CR’s] house and then [CR] was yelling and screaming at everybody.
When questioned on 23 and 24 April 2009 about whether she had used recreational drugs on this occasion, the mother denied that she had. She asserted that she had only taken the drug ecstasy twice in her life, once when she was 18 years of age, and again during the bender on the night of her friend’s 21^st birthday party (24.9.08). She denied ever referring to the drug ecstasy as “e,” or knowing anyone who refers to it as “e.” She stated that she did not recall saying to me on 14 October 2008 that she had “been doing some e,” and that if she had said that, she did not know what she would have meant by that.
I find that the mother was less than forthright about her drug use and that she seemed willing to admit or conceal her drug use as it suited her. Her oral evidence when she completely denied having used ecstasy on 19 September 2008, is entirely inconsistent with the evidence given on 14 October 2008 on the same topic. As I have noted, this is a significant piece of evidence weighing against the mother’s credit.

Alleged sexual assault

The mother’s written statement about her activities during the bender (24.9.08 to 28.9.08) contains a reference to having been sexually assaulted at some point between leaving the nightclub SV at 1:15am on Sunday 28 September 2008 and waking up “in the bushes sore and half naked” at about 2:30am on the same day.
In oral evidence the mother stated that she believes she was in fact raped, and that the only reason for her withdrawal of the complaint was that she spoke to the police and they did not have any leads on who may have committed the offence. She stated further that she was already going through legal proceedings in relation to family issues as well as in relation to the theft of her car, and she did not need to have another court case on top of it all.
The circumstances surrounding the alleged assault were the subject of evidence on 14 October 2008. The relevant portion of the transcript is as follows:
HIS HONOUR: Now you said your sexual assault, when did that happen?
[THE MOTHER]: Probably two weeks ago.
HIS HONOUR: In what circumstances?
[THE MOTHER]: I went to [SV], and we were drinking –
HIS HONOUR: So is [SV] a –
[THE MOTHER]: A club.
HIS HONOUR: It’s a club, right.
[THE MOTHER]: This is, what I’m trying to say, and yes, I don’t remember what happened (indistinct) when all this happened.
HIS HONOUR: Had you been drinking very heavily or do you think you were spiked in some way?
[THE MOTHER]: No, I was drunk, you know, my friends (indistinct).
Despite the mother replying in the negative on that occasion to my query regarding whether or not she thought her memory loss may have been caused by her drink being spiked (as opposed to simply being drunk), on 23 and 24 April 2009 the mother stated that her drink was in fact spiked. She stated that she believes her drink was spiked because she cannot remember what happened, and also because she left the club feeling sick. When pressed, however, the mother conceded that that may possibly have been due to the fact that she had consumed so much alcohol by that point that she simply had no memory of what happened and did not know what she was doing.
Exhibit A contains a computer entry generated by the Queensland Police Service on 28 September 2008 in relation to the allegations made by the mother. The entry states as follows:
On evening of 27/9/08 the nominated victim [WINTERBOURNE] has attended at a friends address, namely the witnesses [name omitted] and [name omitted] already heavily intoxicated. Here the victim consumed more alcohol, before leaving this address and walking to the [SV] Nightclub in […], about 400 metres away. The victims memory is limited due to her state of intoxication but she recalls entering the nightclub, and she has a [SV] nightclub stamp on her arm. That she consumed a couple of [sic] more alcoholic drinks at the club, had several dances, spoke to numerous persons, none that she can name and at one point leaving the club. The victim next recalls walking up the alleyway next to the club and being followed by 2 or 3 guys and she turned left and walked towards […] Street, where she jumped into a garden to hide from the guys following her. The victim states these guys then disappeared. The victim then states the next thing she remembers is waking up in another garden on the opposite side of the road, in front of the Dan Murphy’s bottle shop, that her top and bra were pulled up, exposing her breasts and her pants and underpants were pulled down to her ankles. The victim has then dressed herself, and walking back to the witnesses place at […] Street, where she has stated to the witnesses that she believes she may have been raped, although she only inferred this and did not stated [sic] those specific words. The witnesses state the victim was very intoxicated and emotional and was weeping and they have contacted Police. Uniform officers […] and […] have attended before CIB were called. On speaking to the victim, initially she refused to make a complaint or assist Police in identifying any potential suspects or Offenders. After lengthy discussion agreed to cooperate and taken to [V] Hospital. Here the victim was examined by GMO Doctor […], who states there is no evidence of assault, but does have moisture to the upper section of her vagina to possibly indicate intercourse and semen. After the examination victim showed investigating Police where she had awoken when she was half naked and Police have examined the scene without locating any evidence to assist the investigation. No formal statement taken from the victim at this stage due to her intoxication and lack of sleep, and this will be done in upcoming days. SOC are required to photograph potential crime scene. Both witnesses to the preliminary complaint have been spoken to. The manager of [SV] Nightclub has been advised to secure video surveillance footage. All clothing was seized from the victim and relevant swabs from [omitted] held at [V] Police station at this stage.

There is no evidence before me that would lead me to a definite conclusion that the mother was sexually assaulted, or that her inability to remember what happened to her was caused by her drink being spiked. Given the amount of alcohol that the mother had consumed in the period leading up to and immediately before the alleged assault, it is likely that her memory loss is due simply to her general state of intoxication. What is clear is that the mother on this occasion had behaved in a way that had put herself in significant danger.

THE STATEMENTS OF KM AND THE MOTHER’S SISTER

The statements written by KM, the mother’s former housemate, and CR Winterbourne, the mother’s sister, in relation to their observations of the mother’s behaviour were the subject of considerable focus at the hearing. I note that the substance of KM’s statement and the entirety of CR’s statement were read onto the record on 14 October 2008. Given their relevance to the issues that I have to decide in this matter, I will reproduce their contents below. I note that they form part of Exhibit G.

The statement of KM

KM’s statement is dated 3 October 2008 and is in the following terms:
My name is [KM] and I have been [the mother’s] housemate for some time now in [E] and [V]. I used to just ignore [the mother’s] parenting but just recently it has become way too disturbing and I am starting to be very concerned about their safety and well being. In the past four months these are the things that I have witnessed [the mother] doing with and in front of her kids…
·She ignores both [K] and [J] constantly in the morning if they wake before she does, letting them have free roam of the house getting into things such as razors, shampoo etc, dishwashing liquid, cleaning products, dishwasher tablets and sharp objects in the kitchen drawers and when I confront her about it her reaction is “Meh they didn’t hurt themselves” or “Meh they’re not dead.” The worst one is that she doesn’t care when the girls hang off the edge of the balcony off her room and that really scares me. They slip their feet under the bottom wire rail and hang right off the edge and they climb the wire rails and their feet often slip through and I have caught both girls before they have gone straight through the rails so many times. I keep telling her they are going to fall one day and she just says oh well, they’ll learn then won’t they.
·She yells at her children constantly instead of getting up and attending to them when they need or want something or if they are doing something they shouldn’t be doing.
·In the past month I have seen her bath the girls about 4 times and [K] has recently had a boil on her stomach and [J] has usually got some sort of nappy rash or sweat rash. (I have bathed the girls quite a few times when I couldn’t stand it anymore.)
·[K] frequently changes her clothes but seeing as [J] can’t she will often stay in the same clothing for up to three days and she will become rather smelly and look very unclean.
·I noticed about 3 months ago that [K] started having nightmares and became more of a restless sleeper than she already was. The things she says in her sleep are like “No Mummy don’t do that” or “Mummy stop it” and “Mummy you said you won’t do ooh yeah anymore.” “Ooh yeah” as [K] says is sex and [K] frequently talks about it and people around us, whether we are at peoples houses, our house with people over or out in public, are absolutely disgusted when they hear [K] start talking about “nookie” which she has just started saying recently.
·[J] does not eat nearly enough solid food as a 15 month old should, and when she does eat solids it is something like lollies or a packet of chips and a bit of whatever is for dinner and [K] only ever eats junk food like lollies and chips and biscuits.
·Just recently [the mother] has been harshly smacking [K] and [J]. [J] will get a smack on the hand or bottom or leg, but the smack is far too hard for a baby and she is only a small baby. [K] will get flogged either on her leg or bottom or on her face or back of her head and they leave red marks. One time about two weeks ago [the mother] smacked [K] on her leg and it actually welted up into the shape of [the mother’s] hand and [the mother] just said “Well that’s what you get for being a little fucking bitch.”
·She is constantly calling the girls names like that “Little bitch,” “Fucking mole,” “Cunt” and “Feral bitch.”
·[The mother] has always drunk alcohol in front of the girls not at all concerned if they aren’t being looked after properly or treated poorly while everyone around them is drunk. Just recently she went out clubbing while I babysat and when she came back she completely ignored me telling her that the girls were asleep and she woke them up by being so loud and she didn’t make [K] go back to sleep until I think 7am but I managed to get [J] back to sleep by 3am.
·That same night, she had taken 4 ecstasy pills, speed and cocaine at the club and returned to her sister [CR’s] house completely off her face and was rolling around on the floor, before and after waking the girls up, half naked with just pants on and there were two men touching her and grabbing her breasts in front of the girls. Well [K] think touching like that is part of sex so [K] was sooking and screaming at one stage and [the mother] would just yell at her and tell her to “Shut the fuck up you little bitch, I’ll do what I fucking want to do” and [K] would continue crying. Shortly after that she took [K] for a walk with her to pick up her very drunk and high friend from a park down the road and I think that was just before 4am.
·That same night again [the mother] and her friends, one of whom was also running around naked but completely naked, got a noise complaint and [the mother] went out the front and took [K] with her to see the police officer at around 4am and she gave all her wrong details then was driving around to get smokes and more ecstasy pills and she had two more that morning between 4am and 7am.
·And again, that same night or morning, there was a male in one of the beds and [the mother] was still half naked when she climbed on top of him and was kissing and touching him and rubbing her breasts in his face and this was all in front of [K] who was screaming for her mum to stop so [the mother] got off the male and said to [K] again that she could do what ever the fuck she wanted and when [K] said they weren’t allowed to do “ooh yeah” which is sex in front of her [the mother] slapped her in the face and called her some names and climbed right back onto the male in the bed, causing [K] to scream more and run away screaming.
·[The mother] constantly overloads her car which she was driving around unlicensed, with the car seat taken out to fit her friends in and the girls either sitting on peoples laps or on the floor in the front passenger side, then there are the times when she would sit either [K] of [sic] [J] on her lap while she was driving and she would let them steer around the [EL] suburb. With [K] she would fully let go of the wheel so [K] could steer and she would only correct the steering when we were about to go up a gutter or hit a road island.
·[The mother] was always drinking in front of the girls many nights a week and the month we lived in [V] she would drink up to 5 nights a week and have a couple of friends over and I’d put the girls to bed and [the mother] would sleep until anywhere from 12pm to 2pm the next day.
·[K] always sits up on her knees in the car and [the mother] lets her have the window all the way down and she puts her head and arms out the window and [the mother] doesn’t even tell her to get inside the car and sit down.
·[The mother] would often tell [K] bad things about her father, [Mr Tracey], such as “Daddy’s an asshole” and “Daddy’s being mean” or “Daddy won’t talk to you cause he’s a cunt” and something she always tells [K] to say to [the father] when she’s on the phone to him is “you tell Daddy that you don’t want to go stay at his house until Mummy can see [Z], but don’t tell him I told you to say it ok.”
The next page of the statement is smudged and difficult to read, however appears to state as follows:
·Guaranteed nearly every time [J] cries, instead of figuring out what was wrong or what she wanted, [the mother] would just shove a bottle in her mouth and lay down. [The mother] has told me at least two times that she doesn’t even want her kids. She said they piss her off too much and they’re little cunts. I asked her why she gets me to do so much stuff for her kids and she says because I actually want kids and she doesn’t.
·Another thing to do with [the father], if [K] was misbehaving [the mother] would tell her “If you don’t stop being a fucking little bitch you can go live with your fucking asshole of a father and you will never ever see Mummy again! Huh, how would you like that?” and [K] would say that she didn’t want to so [the mother] would tell her to start behaving or she would go.
·The most common threats of violence that [the mother] gives [K] are “If you don’t behave I’ll fucking flog you” or “Stop being a bitch or I’ll smack you in the mouth.”
[The mother] is very repetitive, doing the same kinds of things like what I have written about all the time. Because I can’t sit back and just leave the girls to be neglected I end up feeding them or bathing them or changing their clothes or whatever [the mother] just assumes that if she won’t do it I will. All her family and I want her to do is straighten up her life for the safety and well being of those two beautiful little girls cause that is the least they deserve.

The statement of Ms CR Winterbourne (the mother’s sister)

CR’s statement is dated 3 October 2008 and is in the following terms:
Hi my name is [CR] and I am [K] and [J’s] aunty and I fear for there [sic] safety because I have seen these things happen.
1.Their mother [Ms Winterbourne] always going out to a night club and dumping her children on anyone that will mind them for her as she has asked me on several occasions to ask the people in my phone book on my mobile.
2.On September 19^th 2008 we both went out to the night club. [The mother] left the children with her flat mate again. In the short period of time that we were at the club [the mother] had managed to 1) get drunk 2) kiss a female 3) get on to drugs (eckies) and 4) was told by security to leave the premises and go home. To my knowledge [the mother] had 4 eckies and another two before I had gotten home.
3.The same night she was in my house hitting on to two guys, running around my house next to naked, being loud and having sex in front of [K] her 4yr old. [K] was screaming and saying mummy “NO OW YEAH.” [The mother] kept going telling [K] to piss off.
4.[The mother] has quite often left her children with her flat mate to hang n [sic] drive her friends around unlicensed.
5.On several occasions [the mother] has driven the car with [K] not seat belted and with the kids on her lap while driving and speeding a lot.
6.[The mother] has said quite a lot that she needs to get away from her children as she is stressed but no one has seen her spend any time with her children.
The baby [J] is always in dirty clothes often worn for several days never dressed properly and that I have in my time there never bathed.
I fear for the children’s safety and feel that they deserve to be with people that love and will take care of them as their own mother has failed to do. Please don’t send the children back to a place like that until their mother has straightened up her act and learns that no matter what her children should always come first.

The mother’s explanation as to why the statements were made

The mother gave conflicting explanations for why she thought the statements had been written in the first place. On 14 October 2008, in response to having heard the statements for the first time, the mother stated (at page 12 of the transcript): “Well, first off, me and my sister do not have a very good relationship. We haven’t had one since she was little and stuff that she said in her statement is not correct.” Further, at page 13 of the transcript, she stated: “And in the club, I don’t know why she would have said that. (indistinct) we were basically talking (indistinct) and I kicked her out on her arse.”
The mother offered a new explanation on 23 and 24 April 2009, which was that at the time the statements were written, she and her sister had a falling out, and that her sister was going through a rough patch with her son and was suffering (on the mother’s diagnosis) from post-natal depression. The mother stated that she told her sister that if she did not seek help, the mother would notify DOCS and would ensure that CR’s child was sent to live with the child’s father. The mother stated that she believed that CR had written the statement because of her anger at the mother over that issue.
The inconsistency between these two explanations was pointed out to the mother by the Independent Children’s Lawyer. With reference to the explanation originally offered on 14 October 2008 that her sister’s motivation for making the statement related to the fact that they had not had a good relationship since they were little, the mother was asked “do you think it’s possible that you just made up whatever occurred to you to say on that occasion?” The mother response to this question was “At the time probably.”
In relation to KM, the mother stated that she was very unhygienic, that she did not like the way KM lived, and that she kicked her out of the house around the time the statement was written. The mother also stated that she did not want KM around her children after a certain amount of time. The Independent Children’s Lawyer pointed out to the mother the fact that this assertion does not sit well with her willingness to leave K and J in KM’s care in order to go out socialising with friends. In response, the mother stated “I’m not sure, just because I wanted to go to the party and I wasn’t thinking straight obviously.” She stated that she understood now that that was not the best thing to do and that she regretted it.

The weight to be placed on the statements

It was submitted by counsel for the mother that I should not place a great deal of weight on the statements of KM and CR due to the fact that neither of them was available to have the contents of their statements tested under cross-examination. The difficulty faced by counsel for the mother in making that submission is that every opportunity existed, following the reading of the statements onto the record on 14 October 2008 (at which time the mother was present via telephone link-up and legally represented), to contact both witnesses and issue subpoenas for their attendance should they prove unwilling to cooperate.
I note that despite the contents of the statement being made known to the mother on 14 October 2008, the mother took no steps to attempt to ensure that either CR or KM would be available to give evidence and be questioned as to their motivations for becoming involved in the matter.
Exhibit G includes subpoenas filed in the registry of this Court on behalf of the father for the attendance of KM and CR, as well as notifications of non-service in respect of both women provided to the father’s solicitor by a process server. From the reports provided by the process servers, it appears that neither woman could be located at the given address, however a current occupant of the given address (who appears to have been KM’s mother) stated that CR was now residing at an address in Queensland, “however our agent is not sure how reliable or accurate this information will be.” Counsel for the mother informed me from the bar table that the mother is aware of her sister’s current address, and I note that the address given by counsel for the mother accords with the address contained in the process server’s report dated 17 April 2008. Why that information was not acted upon I do not know. The process server was also given information by KM’s mother that KM could be located at an address in E, however that proved not to be the case. The mother in these proceedings, who was at the address when the process server attended, “advised that [KM] is now living in country Victoria somewhere, possibly Ballarat, however, an exact address was not known.”
It is clear that the father for his part made efforts to have KM and CR available. Whilst I do not draw a Jones v Dunkel inference against the mother for not having the two women available, I do reach the conclusion that at least her sister could have been available had the mother made an effort to enable that to happen. I find that the mother did and does know or had and has the means of finding out where her sister is from time to time.
The statements made by the two women on their face have been made independently and seemingly out of spontaneous concern for the welfare of the two children in the mother’s care as at September 2008. Other parts of the disturbing conduct reported in those statements have been conceded by the mother. Parts of them have been conceded orally by the mother, initially on her oath and then denied on her oath. The statements paint a disturbing and compelling picture. I obviously have to treat them with some caution because the witnesses are not available to be tested on these statements, but given the lack of confidence I have in the mother’s sworn evidence, these statements (parts of which the mother does not deny are accurate) have to be afforded some weight. No evidence was led by the mother of any medical condition suffered by her sister that would substantiate the mother’s explanation about post-natal depression.

THE COMPLAINT BY THE FATHER’S NEIGHBOUR

Included in Exhibit A is a complaint written by an anonymous neighbour of the father and Ms W in relation to alleged excessive noise emanating from the property at O. The letter is dated 10 November 2008. The three heads of complaint are:
121.1.Loud “dance” or “hip hop” music played on a regular basis during the day and night in the back yard of the property (speakers or stereo seem to be in the back yard and not in the house as the noise can be heard within a large radius of the property).
121.2.Tenants and associates congregate in back yard on most days and speak in loud voices and use offensive language, often screaming at each other and the children.
121.3.Multiple vehicles appear to be garaged at the property and leave the premises at great speeds along the Street and make loud noises (the vehicles appear to be “hotted up”).

The evidence of the father

The father gave evidence that in November 2008 (just preceding the writing of the letter) he and Ms W held a birthday party for Z at which there was a jumping castle in the backyard and music played through the DVD player on the television. He stated that a group of his own friends were present and were out in the backyard talking loudly, however he denied that there was any swearing. He also stated that there was no other occasion on which noise came from the premises.
The father stated that he does not have friends around for a drink, that he has only had friends around on one occasion other than Z’s birthday, and that there was no alcohol drunk on that occasion.
In relation to the complaint of multiple loud vehicles entering and exiting the property at high speeds, the father denied that allegation and stated that he owns two vehicles, one of which is an unregistered ute. He stated that none of his vehicles are hotted up and that he no longer engages in bad behaviour in a motor vehicle.

The evidence of Ms W

Ms W’s evidence on this issue differs somewhat from that of the father. She stated that a birthday party was held for Z which involved a barbeque and a jumping castle in the backyard. She stated that approximately 12 children were present, along with their parents, and that the party continued until approximately 7:00pm.

Ms W stated that she and the father do have a CD player, but it is inside the house and not very loud at all. She stated that she and the father do have friends over on occasion and they sit out the back if the children are sleeping. She stated that sometimes bad language is used, but not loud and not around the children at all. She stated that no music is played when friends are around. Ms W also stated that no alcohol is kept on the premises and that nobody drinks at her house.
In relation to the allegations concerning loud motor vehicles, Ms W denied that there were loud cars coming and going from the premises. She stated that the father owns a V8 2002 vehicle which is not a noisy car, as well as an unregistered ute which is currently being sprayed in preparation for becoming the father’s work vehicle. Ms W stated that she owns a Commodore which is neither loud nor hotted up.

Conclusion

I note the discrepancies between the evidence of the father and Ms W on this issue; specifically the father’s assertion that they have only had friends over on one occasion apart from Z’s birthday, as well as his denial that any swearing takes place at all. I prefer the evidence of Ms W on this point, as she seemed more frank in her responses and the picture she painted of the couple’s social life seemed more realistic.
In relation to the complaint itself, I accept the evidence of both the father and Ms W that the noise in this instance was the result of Z’s birthday party, and that it is not likely to be a regular phenomenon. In any case, I do not place a great deal of weight on an untested complaint made by an anonymous neighbour and the matters raised do not impact on parenting capacity in the same way as matters raised in statements against the mother.

THE VIEW OF THE FAMILY CONSULTANT

The position of the Family Consultant, Ms L, is unequivocally that Z and K should reside together. This view is encapsulated at paragraph 52 of her report dated 18 December 2008, which states as follows:
The two children have a very close relationship and it is clear from observation and the parents’ reports that the children enjoy spending time together and miss each other when separated. In view of this their sibling relationship should be prioritized and if possible they should live together. In addition it should be noted that for children their [sic] sibling relationships are likely to be the longest lasting relationships they will have.
Ms L gave oral evidence on the second day of the trial and adhered to this position. She stated that it was her quite strongly held view that the two children should be together, and that the best place for this to occur was in O with the father.
Although Ms L’s final position was clear, she nevertheless acknowledged that the move from E to O would not be an easy one for K to make, and that several factors needed to be weighed up and examined before any final orders were put in place. First and foremost among these is obviously K’s attachment to the mother, who has been her primary caregiver since birth and with whom she shares her closest relationship. Ms L stated that K’s removal from her primary caregiver would cause her some level of distress, and that it would take K some time to adjust to not being with her. She also acknowledged K’s relationship with J and the fact that K would miss J if the two were to be separated. Ms L also noted the fact that K has begun formal schooling, and any change to her place of residence would necessitate the disruption of those arrangements. However, after taking each of those matters into account, Ms L maintained her view that it was in the best interest of both children to grow up together in their father’s care.
Counsel for the mother questioned Ms L quite extensively in relation to her emphasis on the prioritisation of the relationship between Z and K; specifically, why that relationship should be prioritised over the relationship of each child with his or her half-sibling. Counsel for the mother queried whether Z differentiates his full-sibling K from his half-sibling H, and similarly whether K differentiates her full-sibling Z from her half-sibling J. Although Ms L acknowledged the close relationship between Z and H on the one hand and K and J on the other, she emphasised that the relationship between siblings with a shared biological parentage is often the longest relationship that children have and that it involves a shared history and commonality that needs to be prioritised in view of the long term interests of the children.
Counsel for the mother submitted that while Z and K know and communicate with each other and have the same biological parents, they do not have a shared history that would justify the prioritisation of their relationship over other considerations. That submission somewhat misses Ms L’s point. Ms L was referring to the development of a shared history between the two siblings over the course of their life and the need to facilitate that process.
Ultimately, the two factors referred to above, namely the effect upon K of being separated from her primary caregiver since birth and the additional impact of the loss of her relationship with her half-sister, together constitute the most significant argument against placing K in the care of the father. Those factors are important and I obviously need to take them into account in a significant way.
Ms L took the view that regardless of what arrangements were put in place in relation to K, Z should remain with the father. On her view, the mother’s primary application was not in Z’s best interest.

PRIMARY CONSIDERATIONS

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

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

I find that it is of benefit to the children to have a meaningful relationship with both of the children’s parents so far as possible.

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

A number of allegations have been made against the mother. The first is the issue of K having witnessed the mother engaging in sexual activity. The evidence on this question comes from the statements of KM and CR, as well as from certain comments that Ms W states that K made to her.
KM states that the mother returned from a nightclub under the influence of drugs “and was rolling around on the floor, before and after waking the girls up, half naked with just pants on and there were two men touching her and grabbing her breasts in front of the girls.” KM asserts that that same night or morning, the mother engaged in sexual activity with a male in one of the beds and K witnessed this activity. KM also asserts that K made comments in her sleep such as “No Mummy don’t do that” and “Mummy you said you won’t do ooh yeah anymore,” and also made references to “Ooh yeah” and “nookie” while awake.
The mother’s sister CR states that after returning from a visit to the nightclub on 19 September 2008, the mother “was in my house hitting on to two guys, running around my house next to naked, being loud and having sex in front of [K] her 4yr old. [K] was screaming and saying mummy “NO OW YEAH.” [The mother] kept going telling [K] to piss off.”
Pages 7 and 8 of Exhibit A, excerpted above, detail four separate instances of K making sexualised comments (dot points 3 to 6). I accept Ms W’s evidence that K made those comments, subject to the clarifications outlined above, which I infer are probably attributable to the information having been distorted slightly in its transmission from Ms W to her mother to the E Child Safety Centre.
The mother denied the allegations raised by KM and CR. While she did state that K has walked in on her on two occasions while she was engaged in sexual activity and that she stopped straight away on those occasions, her evidence places those two occasions at different times to the incidents referred to by KM and CR.
The mother stated that on one occasion K walked in on her with Mr M, and on the other occasion K walked in on her with a male named T. The mother gave evidence that the first occasion occurred within six months of moving into the property at M Street. The lease on that property commenced on 8 October 2007. The mother stated that the second occasion took place during the period April to August 2008.
In addition to those two incidents, however, the mother gave evidence that she had sexual relationships with two people during the period April to August 2008, that those relationships were being conducted while she had K and J living with her, that on occasion the men would spend the night in her room, and that K would have been aware on those occasions that a man was staying in the mother’s room.
I note that both KM and CR refer to a specific incident on 19 September 2008 during which the mother was allegedly under the influence of drugs. The mother herself said to me on 14 October 2008 that she used ecstasy on that occasion, however she later denied not only having used ecstasy, but ever having told me that she did. I find that the mother was under the influence of drugs on 19 September 2008 and I accept the evidence of KM and CR that K witnessed the mother engaged in sexual activity on that occasion. Given the mother’s drug-affected state, it is probable that she was oblivious to the possible impact of her behaviour on K and I doubt that she would have had sufficient clarity of mind to cease the sexual activity when K entered the room.
There are therefore at least three occasions on which K witnessed sexual activity. The need to protect K from further psychological harm in this respect is a significant matter that I need to take into account.
The statements of KM and the mother’s sister also provide disturbing allegations in relation to the following risky behaviour by the mother so far as K is concerned:-
148.1.Drinking in the household with friends and not putting the children to bed at reasonable hours.
148.2.Leaving the girls with persons whom the mother does not know well.
148.3.Not properly supervising the children or caring for their needs.
148.4.Using inappropriate language directed to the children.
148.5.Driving a motor vehicle with the children not properly secured in the motor vehicle and driving the motor vehicle at speed.
Whilst as I have said, I have to be careful of the weight that I give that evidence, and given the circumstances in which the statements were made and the circumstances in which the two women have not been able to be subpoenaed, I do give that evidence some weight.

ADDITIONAL CONSIDERATIONS

Section 60CC(3) provides additional considerations for the Court when determining what is in a child’s best interests. The additional considerations relevant to this matter are discussed below.

The nature of the relationship of the child with each of the child’s parents

Ms L stated in her report that K was very happy to see her father. She stated that “as [K] resides for most of the time with her mother it would usually be assumed that, at her developmental stage, she would be primarily attached to her mother. However, this proved difficult to establish on assessment.” I find that K has a good relationship with both of her parents and that her primary attachment at this stage is to her mother.
Ms L stated in her report that Z demonstrated “a close and secure relationship with his main caregivers, [the father] and [Ms W].” In relation to the mother, Ms L stated that “[Z] showed no anxiety around his mother but it was clear that he does not have a familiar or close relationship with her.”
The mother’s alternate proposal (order 12 as sought) seems to be an acknowledgment by her that she has to build up a relationship with Z until such time as she can have an extended holiday with him (she proposes a period until 31 December 2009).

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

At paragraph 20 of her report Ms L states that “the father has shown some ability to facilitate and encourage a close and continuing relationship between [Z] and the mother as evidenced by his attempts to encourage the mother to spend gradually increasing amounts of time with [Z] to rebuild her relationship with him.”
In oral evidence the father stated that he encouraged a relationship between Z and the mother by including Z in his own telephone calls to K, and making Z available should the mother wish to talk to him. The father stated that there is hardly ever a conversation between Z and the mother, and that that is not due to his control of the situation. The father acknowledged the importance of Z having a relationship with his mother, and he stated that he and Ms W have discussed this issue. He stated that when K is staying with Ms W and himself, he asks K whether she would like to call her mother, and that this occurs twice during the week.
An issue that was explored during the hearing is how each child refers to the partner of the parent with whom they live. The father gave evidence that Z refers to Ms W by her first name, but that he has called her “Mum” on a couple of occasions and they have corrected him. He stated that he has never heard Ms W refer to herself as Z’s mother.
Ms W stated that she does not consider herself to be the mother of Z or K. She was taken to paragraph 4(iii) of her affidavit, which states as follows:
When [K] is spending time with [the father] and myself I simply extend my role as [H’s] mother and [Z’s] step mother to also include and care for [K] in the same loving and caring way. I make no distinction between the three children and I look after them and love them equally and the same.
…
Being a fulltime mum to three young children is certainly a challenge but one that I enjoy and relish. I love and care for [K] as if she was my own.
Counsel for the mother implied in cross examination that this part of Ms W’s affidavit indicated that she considered herself to be Z’s mother. I do not accept that that is so.
Ms W stated that K calls her by her first name when she comes to stay, and that K knows who her real Mum is. I do not accept that Ms W is in any way attempting to subvert the role of the mother. The portion of her affidavit excerpted above makes clear that Ms W is aware of her role as Z’s step mother and that she simply extends this role to K.
Exhibit C is a letter from Ms H, Resident Medical Officer at O Hospital, to Western Plain Medical CE in relation to Z’s admission to the Emergency Department on 22 May 2008 for acute asthma. The letter states that Z “was brought in by his mother today,” that “His mother was educated on the use of a salbutamol puffer with space,” and that “If he was to deteriorate in the meantime I have asked his mother to return to ED.” The inference that counsel for the mother asked me to draw is that Ms W made herself out to be Z’s mother on 22 May 2008 and that this demonstrates an unwillingness to facilitate a relationship between Z and the mother.
I am unable to accept that submission. There is nothing in Exhibit C to suggest that Ms W deliberately portrayed herself as Z’s mother. It is quite possible that someone at the Emergency Department made the assumption that a young woman who brought in a small child for treatment was the mother of that child. Ms W stated that she did not refer to herself as Z’s mother, and I accept her evidence on that point.
At paragraph 29 of her report Ms L states that “Unfortunately the mother has failed to promote the relationship between the father and [K] by encouraging [K] to refer to the stepfather as, ‘Dad’ and [the father] [by his first name].” At paragraph 37 Ms L notes that according to Mr M, K sometimes calls him “Dad.” In oral evidence Ms L stated that it was not appropriate for K to call Mr M “Dad” when he has regular contact with her father. She stated that when she saw K, the chid seemed to have a little bit of confusion as to when to use “Dad” and when to use the father’s first name, and that this put K in a difficult position. Ms L also stated that the mother had told her that she had corrected K for two months and then allowed her to refer to Mr M as “Dad” because she had known him for long enough.
Mr M gave evidence that K initially called him by his first name, but now refers to him as “Dad.” He stated that he told K that she only had one Dad, which was the father, but if she wanted to call Mr M Dad then that was up to her. Mr M also stated that he had heard the mother say the same thing to K, specifically, that if K wanted to call Mr M Dad, then it was up to her. Mr M stated that when the father rang to speak to K, the mother would answer the phone and tell K that “daddy is on the phone.”
Counsel for the mother submitted that not a great deal of weight should be placed on the fact that K refers to Mr M as Dad and the father by his first name because there is no evidence to suggest that K is confused about who was who. Counsel for the father also submitted that this issue was perhaps not as significant as Ms L made it out to be. I find that it is significant. It indicates a lack of insight on the part of the mother as to the confusion that K might develop in respect of knowing who her real father is and what that says about the mother’s ability to encourage a relationship between K and the father.

The likely effect of any changes in the child’s circumstances

I find that both K and Z would experience some level of distress at being separated from their primary caregiver in order to reside with the other parent, although it is likely that Z’s distress would be the greater. K’s primary attachment is to the mother, who has cared for her since birth, and I acknowledge that the disruption of that relationship would have an impact on K. As mentioned above, the family consultant was somewhat surprised as to the level of the relationship between K and her father given her developmental stage. The family consultant, in contrast, said that Z did not have a familiar or close relationship with his mother. Z’s primary attachment is to the father and also to Ms W, and I accept that Z would experience distress if separated from them. The short-term distress caused by their separation from their primary caregivers has to be weighed against the long-term benefits to the children of growing up together.
If K were to be removed from her mother’s care, she would also lose the benefit of regular contact with J and Mr M, with whom she is obviously close. Similarly, were Z to be removed from his father’s care, he would lose the benefit of regular contact with Ms W and H.
Ms L’s firm view is that the benefits to the children of being reunited outweigh the disadvantages of being removed from their current environments. The father and the Independent Children’s Lawyer support that view.

The practical difficulty and expense of a child spending time with and communicating with a parent

Due to the large distance between E and O (counsel for the mother mentioned in submissions that the car trip is approximately 20 hours, although I do not have any evidence about that), this is not a case in which equal time or substantial and significant time would be feasible.
I note the mother’s evidence in this context that she would be unable to move to O as Mr M would be unwilling to allow her to relocate J. She also stated that she would feel uncomfortable living in the same town as the father and that they would not be able to get along.
I note also that the father does not want to relocate to E, and that is understandable. He appears to be in stable employment and accommodation. Both the father and Ms W have extended family in the O area.

Capacity of each parent and their attitudes to the responsibilities of parenthood

In comparison to the mother, the father presents proposals which seem to be far more stable and which are supported by proven connections in the O area, particularly with Ms W’s new family and the father has stable employment with Ms W’s father.
In contrast, I have reservations about the mother’s ability to remain in stable accommodation. The mother’s accommodation arrangements since separating from the father have been chaotic at best, involving numerous moves, including interstate. In her affidavit filed 17 April 2009 the mother refers to seeking assistance in March 2009 from Anglicare in relation to obtaining accommodation in E. She was able to obtain accommodation for herself, K and J. She states at paragraph 6 of her affidavit that “[K] and [J] both have their own rooms. All their toys are set up and they appear to be quite settled and enjoying their new home.” Annexed to the affidavit is a tenancy agreement dated 3 April 2009 that specifies the length of occupancy as 13 weeks. The mother gave evidence that she will be able to move into more permanent accommodation at the expiration of that period. This will mean that K and J will need to be put through another move. A temporary occupancy agreement entered into less than a month before the final hearing of this matter does little to reassure me that the mother would be capable in the future of providing a stable environment for K and J, given her past history.
The mother said she had obtained counselling at the E mental health centre after 14 October 2008 in order to assist her in dealing with stressful situations. The mother offered no independent evidence of this and makes no mention of it in her affidavit material. She stated that she did not inform her solicitor or others about the counselling because she was self-conscious and did not want everyone to know about it. I am not prepared to accept that the mother obtained counselling simply on the basis of the mother’s assertion.
Much of what I have said when discussing the second primary consideration is relevant to considering and comparing the capacity of both of the parties as parents and comparing their attitudes to the responsibility of parenting. I find that the father has demonstrated a more consistent history as a parent when compared with the mother’s history.

Family violence

There was no suggestion during the hearing of this matter that there was any issue relating to family violence that was relevant.

Order most likely to avoid further litigation

I find that it is probable that if the children remain separated with K remaining in her mother’s care, it is more likely that there will be further litigation arising from instability in the mother’s future lifestyle and a less than satisfactory willingness to involve the father in K’s life.

SECTION 65DAA FAMILY LAW ACT

Both parties apply for orders for equal shared parental responsibility. That order will be made. Consequently I have to positively consider whether or not it is possible for the children to spend equal time or substantial and significant time with each of their parents.
As discussed above, the parties live so far apart that from a practical point of view, there is little point in further considering that matter. Each party has said that they will not move to where the other party lives. I accept that the choice that I have to make is between the alternate proposals presented by the parties and the Independent Children's Lawyer.
The mother is still a 20 year old woman. It is clear (consistent with the statement of KM) that she likes to have blocks of time to herself in order to interact socially with people of her own age.
Mr M also gave evidence of minding the children for two nights so that the mother could go to the rodeo with friends. Of itself, this may not be of any weight. But it feeds into other evidence which paints the picture of the mother having a propensity to offload the children on others in order to go on extended outings with friends and that is of some concern, in that it indicates an unwillingness or inability to place their needs before her own.
I accept that the mother went out on 19 September 2008 as described in the statements of KM and the mother’s sister, and that she consumed ecstasy on that occasion. I have evidence of two occasions when the mother clearly left K and J with other people in order to go out socialising with friends and consume alcohol and recreational drugs. I do not accept that these were isolated instances.

CONCLUSION

Considering all the evidence before me I find that it would be in the best interests of K and Z to reside with the father in O and have regular contact with the mother. I make the orders as set out at the start of these reasons.

I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 11 June 2009

[2009] FamCA 501

11 June 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness