VIPOND & DARTE

[2015] FamCA 1017

FAMILY COURT OF AUSTRALIA

VIPOND & DARTE [2015] FamCA 1017

FAMILY LAW – CHILDREN – Interlocutory Application – Best Interests – Parental Responsibility – Where the children presently have a relationship with the mother but not a positive meaningful one –Where the children have been exposed to alcohol abuse, drug use and mental health issues by various members of their family – Where there is a great need to provide a stable relationship for the children pending a thorough examination of all relevant evidence at final hearing – Children’s views – Where each parent has made unilateral decisions regarding the children without notice to the other – Where to remove the children from the father’s care at this stage into the uncertainty of life with the mother would, on the evidence available, be taking a significant risk with their safety – Where the mother has not sought help in relation to her traumatic childhood or her mental health issues – Where the children have achieved stability living with the father and they should remain living with him – Where for reasons of the safety of the children, both physically and emotionally, there should be no time and communication between the children and the mother – Where the father is to have sole parental responsibility

Family Law Act 1975 (Cth), ss 60CC, 61DA

APPLICANT: Mr Vipond

RESPONDENT: Ms Darte

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1143 of 2015

DATE DELIVERED: 4 November 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 17 September 2015 and written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Bell & Johnsons Solicitors

SOLICITOR FOR THE RESPONDENT: Mertens Lawyers Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all prior parenting Orders made in the Local Court at D Town and in this Court in relation to the children B born … 2005 and C born … 2007 (“the children”) are discharged.

It is ordered, pending further order

1. That the father have sole parental responsibility for the children.

2. That the children live with the father.

3. That the children should spend no time with the mother.

4. Pursuant to s 11(1)(b)(i) and (ii) of the Australian Passports Act 2005 (Cth), the children are each permitted to have an Australian travel document and to travel to New Zealand.

5. The father may apply for Australian travel documents for each of the children NOTING that the father has sole parental responsibility for the children pursuant to Order 2 herein.

6. That the father be permitted to travel with the children to New Zealand during NSW gazetted school holiday periods provided that he provides to the mother, or her legal representative, not less than 21 days before the children leave Australia, details of the dates upon which the children will be leaving Australia and the dates upon which they shall return to Australia.

7. That the Independent Children’s Lawyer provide a copy of these Orders to the Principal of E School.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1143 of 2015

Mr Vipond

Applicant

And

Ms Darte

Respondent

And

Independent Children’s Lawyer

EX TEMOPRE

REASONS FOR JUDGMENT

introduction

1. These are competing interim applications in respect of the only two children of the parties’ relationship, B aged 10 and C aged eight and a half.

2. The applicant is the father, aged 42. The father is a Maori born in New Zealand.  There is no evidence before me of the father having any other children. The father moved to Australia to live and work in 2002.

3. The respondent is the mother, aged 35. The mother is an Aboriginal woman, born in Australia. The mother has two other children. A young adult son, Mr F aged 19, and a daughter, G aged 16, who lives with the maternal aunt.

4. Both parties live in North Western NSW, in a township outside of D Town.

Evidence

1. The documents relied on in respect of the application were as follows: 

   (a)The interim orders contained in the Initiating Application of the father filed 11/05/2015;

   (b)A Notice of Child Abuse filed by father on 11/05/2015;

   (c)A Response filed by the mother on 16/09/2015;

   (d)An affidavit of the father filed 11/05/2015;

   (e)An affidavit of the mother filed 16/09/2015;

   (f)Another affidavit was filed by the mother, but not in accordance with the directions made. That affidavit was objected to and I have not taken the content of that affidavit into account, given that it is generally a response to the Children and Parents Issues Assessment (“CAPIA”) and deals effectively with matters that are likely to be raised in a final hearing; and

   (g)CAPIA dated 12/08/2015.

2. There are also submissions on behalf of each party.

3. Oral submissions were made by the father in Court. Subsequently on

   
   

   12 October 2015 the mother filed submissions and in reply the father filed submissions, as did the Independent Children’s Lawyer.

Issues

1. The following are the interim issues for determination:

   a)Which of the parties should have parental responsibility;

   b)Where should the children live;

   c)To what extent should there be time and communication with the parent with whom the children are not living; and

   d)Raised on behalf of the Independent Children’s Lawyer, whether or not the father should be able to take the children for holidays in New Zealand, pending the final hearing.

2. Both parties have given evidence about the issue of relocation, on a final basis, of the children to live in New Zealand. This is a matter entirely for the final hearing and I have disregarded submissions in respect of that issue.

The History of Relevant Events

1. The parties began a relationship in 2004 and began living together in 2005. Two months later B was born.

2. In October 2005 the parties separated for six months. The father asserts that the separation was prompted by the mother twice threatening the life of B.[1] The father also alleges that the mother at this time in anger, tried to run him over with their vehicle. On the second occasion of threat, the father called the police and the mother was arrested. The mother then left D Town and moved with B and her two older children to H Town, 300 kilometres away.

   [1] Affidavit of the father filed 11/05/2015, par 70

3. On 22 May 2006 interim Orders were made by consent in respect of B in the Local Court at D Town. Those Orders form ‘Annexure FV-1’ to the father’s affidavit. The Orders provided for:

   a)The parties to have joint parental responsibility; and

   b)The child to live with the father at nominated times around his working schedules, and at all other times, to live with the mother.

4. Soon after the making of those Orders the parties reconciled. The father asserts that he was motivated to reconcile to ensure that B stayed in his life day to day. The mother reacted with some anger and distress at that suggestion, but in any event, the reconciliation was a genuine one and continued for several years.

5. Soon after reconciliation, the parties conceived the second child.

6. In early 2007 the parties moved E Town and lived there in rented accommodation until final separation six years later. Both children started at the local school there.

7. In 2007 C was born.

8. The father alleges, and the mother totally denies, that the mother did not usually meet the day-to-day needs of the children.[2] However, he went to work each day for long hours, leaving both children in the mother’s care. The father asserts that he felt helpless knowing that the children might not be well cared for, but feeling an obligation to support the family.

   [2] Affidavit of the father filed 11/05/2015, pars 58-61

9. It will certainly be an issue in the final hearing as to who was providing primary care for the children and meeting their day-to-day needs. On the face of it, it was the mother during this period.

10. The mother alleges that the father deliberately trod on her foot causing injury whist wearing work boots, that he took away her crutches when she had injured her leg causing her to fall, that he pushed her down the steps deliberately, and that he withheld her medication knowing that she would become ill as a result. She also alleges that the father called her vile and insulting names.[3]

    [3] Affidavit of the mother filed 16/09/2015, par 31

11. The father alleges that the mother injured his neck with a screwdriver in front of B and threw boiling water (tea) on him.[4] The mother denies both those allegations. The father also asserts that the mother regularly used revolting insults directed at both children.[5] He refers to the fact as that as very young children, he was satisfied that the children did not understand the significance of the language the mother used, but became more concerned about it as they became school aged and understood.

    [4] Affidavit of the father filed 11/05/2015, par 73

    [5] Affidavit of the father filed 11/05/2015, par 82

12. It is an agreed fact that in April 2014 the mother punched someone in defence of her son and was charged with Assault.[6] On 7 July 2014 the mother was sentenced to six months imprisonment for the assault. On 28 July 2014 she was released from custody, pending an appeal, with surety bail.

    [6] Affidavit of the mother filed 16/09/2015, par 16

13. It was the father who paid the bail. The mother gave no credit to the father for having done so. In her view the father bailed her out in order that she could continue to look after the children and for no other reason.[7]

    [7] Affidavit of the mother filed 16/09/2015, par 16

14. In September 2014, again the evidence comes from the mother, the mother was involved in an argument/fight with the maternal grandmother and G. The mother punched the maternal grandmother and reacting to G’s attempt to restrain her, also punched her.[8] The mother was charged with offences arising out of this incident.

    [8] Affidavit of the mother filed 16/09/2015, par 18

15. In October 2014 the parties separated. The father asserts it was 15 October 2015; mother says 6 October 2015.  It is the alleged conduct of the mother that is of significance.

16. The father makes the following allegations. That on the day in question, the mother sent the children to bed without their dinner at 4.30 pm. The father arrived home from work and fed the children. When the mother became of aware of that, having been asleep, she king hit the father.

17. The mother then yelled at the children, smoked marijuana in the house, punched B in the head, threw a TV remote at B, accidentally hitting C, referred to B as a ‘dog’, came into the kitchen carrying a carving knife threating to kill the father, boiled the kettle and threatened to tip boiling water on the father. She then called both children out of their rooms saying, “Hey girls, do you want to come and see your father get killed”.

18. Consistently with the rest of his affidavit, the father gave careful, detailed evidence of these allegations and other matters.

19. The mother’s response to the allegations was the one word, “disagree”.[9] It is a stark disagreement but I consider that there was likely serious trouble in the household on that day, which became the turning point for final separation.

    [9] Affidavit of the mother filed 16/09/2015, par 39

20. The father left the house, rang police, and waited for their arrival. After the father had seen the police arrive at the home, he went back inside. The police informed him that the mother alleged he had tried to stab her. The police allowed the mother to leave with the children over the protest of the father.

21. The father thereafter contacted the Department of Family and Community Services (“the Department”) for a welfare check on the children. The mother suspects that Departmental officers were unreasonably assisting the father because of connections through friendship and employment.

22. I am satisfied that the father was concerned about the whereabouts of the children and did what he could to find out whether they were safe.

23. The children lived with the mother for about three weeks elsewhere.

24. Then on 5 November 2014 the mother and children moved into the caravan park opposite the former family home.

25. The mother attended the home of the father with a view to having some of her possessions moved into the caravan park for the benefit of herself and the children. There was partial agreement about what she could take, but not total. The father alleges that the mother threatened to kill him. Police were called and the mother was arrested.

26. On 6 November 2014 the children were collected by the father from school. It is said on the advice of a Departmental officer that the mother was about to be released on bail. By arrangement with that same officer, the father and the children stayed in emergency accommodation. The evidence suggests that the mother was expected to react with considerable anger about the father having taken the children out of school.

27. On 10 November 2014 an Apprehended Violence Order was issued for the protection of the father.[10]

    [10] Affidavit of the father filed 11/05/2015, Annexure FV-2

28. On 14 November 2014 the father returned the children to school. He allowed telephone contact between the children and the mother, but no face-to-face contact.

29. On 8 December 2014 the mother collected the children at lunch time from school and kept them with her. There had been no notice to the father.

30. On 11 December 2014 the mother rang the father saying that she and the children were in Sydney.

31. On 15 December 2014 the Apprehended Violence Order was due back before D Town Local Court on a final basis. There is no evidence before me of what happened in respect of that Apprehended Violence Order. However, the Order must have been continued or made final because it was subsequently varied.

32. On 29 December 2014 the father saw that the mother and children were back living in the caravan park.

33. On 5 January 2015 the police came to the father’s house looking for the mother. The father later learned through a Departmental officer that the mother had apparently been suicidal at this time.[11]  Thereafter the father did not see the children for several weeks.

    [11] Affidavit of the father filed 11/05/2015, par 39

34. On 4 February 2015 the father learned through the Department that the children had been enrolled at D Town Public School.  

35. On 12 March 2015 the mother was taken into custody in respect of the charges relating to the incident in September 2014.

36. The mother apparently made arrangements for the children to stay with the maternal grandmother, but on 13 March 2015, the children were returned to live with the father. They have remained living with him since.

37. Straight away the father re-enrolled the children at E School.

38. On 11 May 2015 the father filed an Initiating Application in this Court seeking sole parental responsibility and residence for the children on a final and interim basis. He also sought a final order for relocation of the children’s residence to living with him in New Zealand.

39. He filed a Notice of Child Abuse describing various abusive acts, including threats against the children, threats against the father in the presence of the children, and the use of vile, offensive language directed at the children.

40. On 26 May 2015 the Apprehended Violence Order was varied to include the children for protection from the mother.

41. On 10 June 2015 these proceedings came before the Registrar of this Court. There was no appearance by the mother. Counsel for the father advised the Court that the father was at that time in prison. On that day, the interim application of the father was referred to the next duty list on 3 August 2015.

42. On 14 July 2015 an Order was made for the parents and children to attend interviews for the CAPIA. There was no appearance by or on behalf of the mother at Court that day. The mother asserts that she was discharged from prison on 9 July 2015.[12] However, it is likely that she did not have sufficient time to make arrangements to be at Court by that date. She was served in any event and attended for interview.

    [12] Affidavit of the mother filed 16/09/2015, par 61

43. On 3 August 2015 the matter was unable to proceed.

44. On 12 August 2015 the CAPIA was released. The recommendations reflect the concerns expressed by the Family Consultant and were as follows:

    a)   That the father needed to continue to support the well-being and best interests of the children;

    b)     Given that the Family Consultant had observed the children to be in a traumatised state, and also because of the reports read by her contained in subpoenaed material, the Family Consultant was of the view that an order for the children to spend no time with the mother would be appropriate and that the father should be solely responsible for the children;

    c)     On a final basis the Family Consultant considered that there might be benefits for the children in relocation to New Zealand; and

    d)     There was also a recommendation for a referral for both children to attend for therapeutic counselling for the trauma they had experienced.

45. The mother then became legally represented and on 20 August 2015 the matter came before me. The mother was present with her solicitor by phone and an Independent Children’s Lawyer was appointed on that day. By consent, on a pragmatic basis and by no means because the mother wished to give up having the children live with her, there was an Order, pending interim determination, that the children live with the father and that he should have sole parental responsibility.[13]

    [13] Submissions of the Independent Children’s Lawyer filed 19/10/2015

46. On 8 September 2015 the Independent Children’s Lawyer spoke with both children in the presence of their school principal by phone; that is, the children were with the principal at school. The children were expressing a clear view to live with the father, were excited at the prospect of travelling to meet paternal family in New Zealand and neither wished to spend time or communicate with the mother at all.

47. On 17 September 2015 the interim hearing commenced. It emerged that the mother had not yet read the CAPIA and wished to have time to do so. Provision was made for that to happen by way of adjournment, which I will come to shortly. A Family Report was ordered.

48. The legal representative for the father made submissions and directions were made for the filing of submissions by the mother once she had had sufficient time to read the CAPIA. There was also provision for submissions in response by the father and Independent Children’s Lawyer. In the event that no party applied to re-list the matter after submissions closed, the Court would deliver reasons for interim orders.

The Law

1. When the Court is asked to make orders about children, the first consideration is parental responsibility.

Parental Responsibility

1. Each of the parents of a child who is not 18 years has parental responsibility for the child. If that is to be varied, there is a presumption (s 61DA) that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.  Both parties are asking the Court to make parenting orders and accordingly I must consider whether the presumption should apply.

2. The presumption does not apply if there are reasons or grounds to believe that the parent of a child, or another person who lives with the parent of a child, has engaged in either abuse of the child or family violence.

3. There is little doubt in this case that there has been family violence. The fact of Apprehended Violence Orders having been made is sufficient indication of that and on her own evidence, the mother has impulsively attacked family members, although the evidence is uncertain as to whether the children, or either of them, were present on the two occasions when the mother was charged with assault.

1. There are a great many competing allegations of violence by each of the parties against the other.

2. If any one of the allegations made by the parents about each other was to be established, it would be clear that the children had been exposed to family violence.

3. Accordingly, in my view, the presumption is easily rebutted in this case. On that basis, and because the relationship between the parties has become impossible, whoever the children live with should have sole parental responsibility, so that authority for important decision making about attendance at school, health, travel and other long-term matters can be made without the risk of exposure of the children to further incidents of violence and/or conflict.

Primary Considerations

1. In deciding whether to make a parenting order, the Court must regard the best interests of a child as paramount. The method of determining best interests is a consideration of the factors set out in s 60CC(2) and 60CC(3).

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

1. According to the observations in the CAPIA, the children presently do not have a meaningful relationship with the mother.  It is too early at this stage interim level to come to a conclusion about the children’s statements and reactions, extreme as they are.

2. The children have lived with the mother all their lives, until March 2015.  The mother is undoubtedly distressed by not having seen them or spent much time with them over the last eight months. There is no doubt that she loves them.

3. The evidence suggests that the children have had the support of the father in the provision of accommodation, of ensuring that they are taken to school and of the meeting of their emotional needs to the extent that he was able to do so in the context of a conflicted, angry and violent relationship between himself and the mother.

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

1. This is a critical consideration in this matter. Section 60CC(2A) directs a judge to give greater weight to those considerations of protection from harm over the need to protect and maintain meaningful relationships.

2. The children potentially, given the issues raised by each of the parents, have been exposed to:

   a)Alcohol abuse by one or both of their parents;

   b)Drug use by one or both of their parents, the maternal grandmother and maternal aunt, although the mother says that the maternal aunt ceased drug use in 2013; and

   c)Mental health issues for the mother, which I will return to later in these Reasons.

3. There is a great need to provide a stable relationship for the children pending a thorough examination of all relevant evidence.

4. That will include testing of the material produced on subpoena with each of the parties.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The children’s views are contained in two main places, namely:

   a)   Briefly by the Independent Children’s Lawyer’s reference to having contacted the children at school[14]; and

   b)     More comprehensively, in the CAPIA.

   [14] Submissions of the Independent Children’s Lawyer filed 19/10/2015

2. The following passages are extracted from the CAPIA:[15]

   [15] CAPIA dated 12/08/2015, pars 19-20 and 25-26 and 31-32 and 34 and 43

   Both children were interviewed together. When the family consultant explained that her role was to discuss what it was like for them to be in their family, [C] immediately began to cry silently as she mopped her tears with the sleeve of her shirt. [B] struggled to maintain composure until about halfway through the interview and then she became distressed when speaking about their experience of the mother.

   The children presented as extremely traumatised children. They became hypervigilant when the family consultant told them that the mother was outside. They were very clear in saying that they did not want to see the mother today, or ever.

   …

   The children reported that the mother would throw knives at them and on one occasion she hit [C] near her ankle. They said the mother also threw knives and plates at the father and would hit him and swear at him.

   The children said the mother called them all sorts of swear words [which they repeated]. The child said the mother speaks to everyone like that, but at home she is worse.  

   …

   The children said they have seen the mother pour hot water on the father; throw knives at him; and hit him in the face; as well as stab him with a knife in his side near his hip.

   [B] then mentioned that [C] suffers asthma and the mother intentionally and cruelly blows smoke in [C’s] face and then laughs at her when she gets upset …

   …

   [B] stopped mid-sentence and said ‘see that vent up there?’ i.e. air conditioning vent. The family consultant nodded and [B] reported that the mother threatened to hang them from the vents in their home and make the other one watch. [C] continued to cry, looking terrified and said that when the mother such threats ‘I thought it was our last change. I thought she might really do it’.

   …

   The children’s experience of their family and their life has been one of absolute trauma …

3. There is more in that final paragraph, but it represents a summary of the observations of the Family Consultant that in her view, the children were genuinely terrified and deeply adversely affected by their domestic life.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children appear to have had a reasonable experience of school, although it has been disrupted in late 2014/early 2015 and may have friends there.

2. The evidence suggests that third parties did not come to the family home and that the children’s experience has been contact with both parents and at times members of the maternal family, although that has not been a consistently good experience given the mother’s hostile relationship with the maternal family.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. Post-separation, that is over the last 12 months, each parent has made unilateral decisions about the children.

2. They have been removed from school without notice to the other parent, more than once; the mother enrolled them at a different school without reference to the father. They have moved around to places unknown and this stage, until finding permanence again in their home with the father.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father is full-time employment and has for the last three and a half years worked as a farm labourer. He now has flexible work hours, with core hours 8.30 am to 3.00 pm. This is a significant change from his early practice of working long days, up to 12 hours.

2. The mother is not in paid employment.

3. There is no evidence of any financial contribution by her since her discharge from gaol. It may be that the father has not required that given that he has maintained employment.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. To remove the children from the father’s care at this stage into the uncertainty of life with the mother would, on the evidence available, and untested as it is, be taking a significant risk with their safety and would be damaging to their confidence and willingness to trust third parties and authorities to assist them.

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

1. The parties live close by to each other in a very small township, outside of a mid-sized city.

2. The difficulty is that in the ordinary course of the day, they are likely to see each other quite often. As it is, the size of the township creates special difficulties for the children with their parents.

3. In the event that there were to be orders for time and communication, it would be quite easily achieved.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. This is very much an issue in these proceedings.

2. There are allegations by the father repeated by the children that the mother uses marijuana every day. In the father’s affidavit, he referred to the children saying to him, when they returned from a period of three weeks away with mother, “… Mum smokes bongs all the time”.[16] One of the children described the equipment that was used.

   [16] Affidavit of the father filed 11/05/2015, par 50

3. The biggest issue is the mother’s metal health. The father says that he was with the mother when she was diagnosed with schizophrenia early in their relationship. The mother agrees that she was so diagnosed and that the father was present.

4. The mother asserts that she has medication and that the father has hidden it from time to time. Indeed, she blames him for the fact that she was arrested. She attributes that to the father having hidden her medication, which affected her behaviour, presumably making her more aggressive.

5. The father asserts that the mother went into the F Mental Health Unit in 2009 and was admitted by police. The mother agrees that she did enter the Mental Health Unit, but asserts that she self-admitted.[17]

   [17] Affidavit of the father filed 11/05/2015, par 84; Affidavit of the mother filed 16/09/2015, par 63

6. The mother refers to having been diagnosed with a range of mental illnesses:[18]

   I have been diagnosed with schizophrenia, bipolar, Post traumatic stress disorder and hypervigilance and a personality disorder. Consequently my moods alter. I always try to stay happy and continue to smile. 

   [18] Affidavit of the mother filed 16/09/2015, par 59

7. However, there is no medical evidence of ultimate diagnosis and more importantly, treatment and information about the extent to which both illnesses can be effectively managed and controlled.

8. This is a most serious issue for the mother to consider. She loves the children and wants them to be part of her life. She needs to give consideration to the fact that her mental health may have clouded her judgment about the impact of her behaviour on the children and others.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are members of two living Indigenous cultures; the Australian Aboriginal culture and the Maori culture in New Zealand.

2. The children girls aged 10 and 8.

3. C has asthma, but otherwise they are both in good health. The father asserts that both children have nightmares about the mother coming to kidnap them.[19]

   [19] Affidavit of the father filed 11/05/2015, par 102

4. The mother is a person who, as is conceded by her, and the father attests to, has been cruelly treated, including being sexual abused by members of the maternal family. The mother agrees.[20] The significant difference is that the mother asserts that this childhood of trauma and abuse has had no negative impact on her parenting.[21]

   [20] Affidavit of the mother filed 16/09/2015, pars 93-94

   [21] Affidavit of the mother filed 16/09/2015, par 78

5. The mother would be well advised to seek professional advice as to whether this is the case. The evidence suggests that something is creating extreme difficulties for the mother in her parenting.

6. There is a reference in the mother’s affidavit to the mother feeling suicidal at the loss of the children last year.[22] There is no reference to the mother seeking help or treatment for those feelings.

   [22] Affidavit of the mother filed 16/09/2015, par 79

7. It is an important consideration for the mother to seek out professional help in respect of this aspect of her mental health to become as well as possible for the future benefit of her children.

If the child is an Aboriginal child or a Torres Strait Islander child

1. The children are Aboriginal children and the mother is an Aboriginal woman.

2. There is no evidence at this stage of their particular connection to culture or whether they have been educated about, or been involved within, their cultural community. No doubt that will be a matter for final hearing.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. A significant issue in this area is the ability of each parent to ensure attendance of the children at school.

2. The father says that the mother regularly left for periods of about three weeks, three times a year, during the course of their relationship.[23] That suggests confidence by the mother in the father’s ability to care for the children. The evidence suggests that he is able to get them to school on time and values their education.

   [23] Affidavit of the father filed 11/05/2015, par 62

3. The parties were not living together when the first child was conceived. The father thereafter obtained suitable accommodation in D Town for the parties and the mother’s two children, then aged 8 and 5, in anticipation of the birth of the child.[24]

   [24] Affidavit of the father filed 11/05/2015, par 10

4. After their first separation in October 2005, when the mother moved to H Town, the father travelled the 600 kilometre return trip fortnightly in order to spend an hour or two with B. There is no doubt of the father’s commitment to the children.

5. The mother is also committed to the children, but loses child-focus in particular circumstances.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There is a current Apprehended Violence Order for the father and the children.

2. There are the allegations and periods in gaol for the mother, as referred to above.

Any other fact or circumstance that the court thinks is relevant

1. Raised in the submission on behalf of the Independent Children’s Lawyer, is the benefit for the children of having a holiday in New Zealand. Both children expressed excitement about that prospect and of meeting the paternal family who maintain communication with them through cards and gifts.

2. There is merit in this submission, not only as a pleasurable experience for the children, but as an opportunity to spend time away from the local community to allow emotions to settle.

Conclusion

1. I have to the conclusion that the children should continue to remain living with the father. They have achieved stability there and, as assessed by the Family Consultant, appear to be in a place of safety.

2. On that basis, for the Reasons stated earlier, the father should also have sole parental responsibility.

3. For reasons of the safety of the children, both physically and emotionally, there should be no time and communication between the children and the mother. Not so much because they have expressly stated that they do not want to see the mother, but rather because there needs to be respite for the children from exposure to conflict and extreme hostility by the mother directed at the father.

4. There is no evidentiary basis for ordering supervised time. Further on balance supervision would not be a sufficient protection for the children from angry impulsive actions by the mother.

5. The likelihood of violence flaring is very high, given the past history.

6. On that basis, there is no reason why in the school holiday periods the children should not have some holiday time right away from the area where there has been so much trouble and unhappiness.  

7. Accordingly, Orders are made for the children to live with the father, for him to have sole parental responsibility, for there to be no time or communication between the children and the mother, and for the children to be able to travel to New Zealand for holidays on condition that the mother is given advance notice of plans, including departure and return dates.

8. An Order is also made for the Independent Children’s Lawyer to provide the Principal of the school which the children attend, a copy of these Orders.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 4 November 2015.

Associate:

Date:  4 November 2015