Waters and Lane and Anor

[2008] FamCA 816

FAMILY COURT OF AUSTRALIA

WATERS & LANE AND ANOR [2008] FamCA 816

FAMILY LAW – CHILDREN – With whom a child spends time – Where parties agree children will live with maternal grandparents and spend time with the mother – Trial issues relate to parental responsibility and the children spending time and communicating with their father – Risk of harm – Children to spend short amounts of unsupervised time with the father and longer periods of supervised time which is to be supervised by the father’s adult daughter

Family Law Act 1975 (Cth)

A v A (1998) FLC 92-800
Goode and Goode (2006) FLC 93-286
Johnson and Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Mr Waters

1^st RESPONDENT: Ms Lane

2^nd RESPONDENT: Ms J Lane

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

FILE NUMBER: NCF 30 of 2006

DATE DELIVERED: 3 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle

JUDGMENT OF: Ryan J

HEARING DATE: 22 & 23 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Peattie

SOLICITOR FOR THE APPLICANT: Hannaway Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Thornburgh

SOLICITOR FOR THE 1^ST RESPONDENT: McNeilly Lawyers

COUNSEL FOR THE 2^ND RESPONDENT: Mr Duane

SOLICITOR FOR THE 2^ND RESPONDENT: Merrick Spicer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Rourke

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

Orders

1. That the maternal grandmother, father and mother have joint parental responsibility for the children in relation to which the maternal grandmother shall consult with the mother and father concerning major decisions regarding the children’s health, education and religion but in the absence of agreement the maternal grandmother shall make such decision and shall inform the mother and father.

2. That “the children”, Y born … November 2002, N born … November 2003, and H born … December 2004 spend time with the father as follows:

   2.1on the first Saturday of each month from 10.00 am to 1.30 pm at a venue or venues other than the father’s residence;

   2.2on the second and fourth Wednesday of each month from 3.00 pm until 5.30 pm and upon the child Y commencing school from the conclusion of school until 5.30 pm at a venue or venues other than the father’s residence;

   2.3on Father’s Day from 10.00 am to 1.30 pm at a venue or venues other than the father’s residence;

   2.4in the event of Ms A being available to supervise the time the children spend with the father, the children will spend time with the father as follows:

   (a)      on the first Saturday of each month from 10.00 am to 10.00 am the following day;

   (b)          in the school holidays in Terms 1, 2 and 3 from 10.00 am on the first Saturday until 10.00 am on the following Monday;

   (c)          in the Christmas school holiday period from 10.00 am on the first Saturday in January until 10.00 am on the following Monday.

3. In the event that the father’s time with the children falls on Christmas Day it is suspended.

4. That the father shall give the maternal grandmother at least 14 days written notice of Ms A’s availability to supervise the next occasion when he is to spend time with the children and thereupon the maternal grandmother shall notify the mother.

5. That the unsupervised time which the father spends with the children shall be facilitated by the father and the maternal grandmother meeting at McDonalds at K except to the extent that when Y commences school the father will collect the children from school on the Wednesday.

6. That the supervised time the father spends with the children shall be facilitated by Ms A collecting the children from the maternal grandmother at McDonald’s at K and returning them to the same place.

7. At the written request of the maternal grandmother the father will submit to supervised urine analysis for illicit drugs within 48 hours of receipt of the request and promptly provide a copy of the results to the maternal grandmother and mother.

8. That the maternal grandmother is limited to six requests for urine analysis from the father per year.

9. During periods of time that the children spend with him the father shall not delegate his care of the children to any person other than Ms A.

10. That the parties are restrained from discussing with the children the alleged incidents of sexual abuse or questioning them about potential sexual abuse by the father on the children. Nothing in this order restrains the parties from responding to any child protection concerns arising from remarks the children may make or having these investigated by appropriate child protection agencies. 

11. That the maternal grandmother authorises the children’s schools to provide the parents with all correspondence that a parent would be provided with in the normal course of events with any associated costs being the responsibility of each parent.

12. That the maternal grandmother authorises any medical practitioner, specialist or counsellor treating the children from time to time to provide either of the parents with all information that a parent would normally be provided with at his or her request with any associated costs to be the responsibility of each parent.

13. The maternal grandmother, mother and father will not denigrate any party or family member of any party in the hearing or presence of the children and not expose the children to other people denigrating any party or member of a party’s family.

14. The maternal grandmother, mother and father are restrained from exposing the children to any form of interpersonal violence including verbal arguments.

15. The mother and father are restrained from exposing the children to persons affected by or consuming alcohol or non-prescription drugs, implements or paraphernalia used or associated with drug taking.

16. The maternal grandmother, mother and father ensure that at no times are the children in the care of adults affected by non prescription drugs or who have consumed more alcohol than the prescribed blood alcohol limit considered legal and safe for driving in New South Wales.

17. That in the event the mother’s weekend time with the children falls on the same weekend that the father is to spend time with the children and notice has been given to the maternal grandmother in accordance with Order 4 herein then the mother’s time will occur on the following weekend. Otherwise the father’s time will occur on the following weekend. 

18. The mother spend time with the children on Mother’s Day as agreed between the parties but failing agreement for a period of not less than four hours.

19. The mother spend time with the children during Christmas as agreed between the parties, but failing agreement as follows:

    19.1from 12.00 noon 23 December 2008 to 12.00 noon       24 December 2008; and

    19.2commencing 2009, from 12.00 noon 24 December to 12.00     noon 25 December in odd numbered years, and from 12.00           noon 25 December to 12.00 noon 26 December in even      numbered years.   

20. If the father fails to comply with the maternal grandmother’s request or produces a positive drug screen, the maternal grandmother is entitled to suspend his time with the children until she is satisfied he is drug free.

21. If when the father collects the children from the maternal grandmother she believes he is affected by drugs or alcohol, she is entitled to suspend his time with the children.

22. If the maternal grandmother believes the father has exposed the children to criminal activity she is entitled to suspend his time with the children.

23. Prior to N and H starting high school the maternal grandmother shall ensure they each receive protective behaviours education from an appropriate child protection agency.

24. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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.

25. At the expiration of one month, unless there is an appeal, all documents produced pursuant to subpoena shall be returned to their owner.

26. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 30  of 2006

MR WATERS

Applicant

And

MS LANE 

First Respondent

And

MS J LANE

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an Application by Mr Waters (“the father”) for parenting orders in relation to his three children by Ms Lane (“the mother”).  The children are Y who is nearly six years old, N who is nearly five years old and H who is three years old.  The mother and father separated in September 2005. Following separation, the children remained in the father’s care. On 4 November 2005 the mother and maternal grandmother, Ms J Lane, retrieved the children and they have lived with the maternal grandmother ever since. 

2. On 22 November 2005 the father filed an Application in a Local Court on the Central Coast for orders that the children live with him.  The proceedings were subsequently transferred to the Family Court and form the basis for this hearing.    

3. As time passed, the mother and father realised neither is able to care for the children long-term.  The mother suffers from mental health difficulties and is mildly intellectually disabled.  The father has an anti-social personality disorder as well a long criminal and substance abuse history.

4. Both parent’s irresponsible lifestyles are inconsistent with adequate parenting.

5. Following the release of the Court Expert’s Report, the parties reached agreement that the children will live with the maternal grandparents.  Final orders were agreed concerning the children spending time and communicating with the mother.

6. The issues for trial related to parental responsibility and the children spending time and communicating with their father.

The Court Expert’s Recommendations 

1. Because of the complex issues involved in this matter, the Court appointed an Independent Children’s Lawyer. On the Independent Children’s Lawyer’s Application Ms S was appointed as the Court’s expert to investigate the children’s and parties’ circumstances. Ms S is a senior clinical psychologist with 32 years experience in child and family psychiatric settings.  She has particular experience in the field of child abuse and neglect, including parenting capacity assessments of parents who experience personality disorder, mental illness, substance abuse, developmental delay and domestic violence.  Ms S was well qualified by training and experience for the tasks required of her. No challenge was made to the factual matters contained in her report or her methodology.  To a considerable extent Ms S’s observations of the parents accords with my own.  Her report and oral evidence carries significant weight.

2. Ms S interviewed the mother, father, maternal grandparents and children in various configurations on 15 and 16 May 2008. On 3 June 2008 I released her report to the parties and Independent Children’s Lawyer. Ms S recommended that the three children continue to live with their maternal grandparents.  In addition to her mild developmental delay and mental illness, Ms S said that the mother has a borderline personality disorder. In her view, the mother is poorly attached to the children and when she is mentally unwell, the mother represents a significant danger to the children.  As to the future, Ms S says the mother “.. is not capable of caring for any young children on a prolonged basis and without close supervision”.

3. Ms S explains that the father has serious personality problems which impacts on his parenting capacity. He described an abusive childhood. He spent a great deal of his childhood in institutions and survived by becoming emotionally hardened. The father went down a path of significant substance abuse and criminality, especially in his adolescence and early adult years. He is an alcoholic and as recently as 2005 was using amphetamines and cannabis.  Ms S was particularly concerned about the father’s “attraction” to young teenage girls.  She highlights, that when he was 23 years old he was convicted of carnal knowledge and regards his wooing, aged 50 years, of the mother who was then 17 years old as exploitative. Following the mother’s and father’s separation, a number of teenage girls who were regular visitors to their home, continued to visit the father.  He has been convicted of supplying two of them with alcohol and a number of teenage girls in their circle allege he has been sexually inappropriate towards them. 

4. Ms S comments upon his obvious inability to adequately care for the children in the two months they lived with him after separation and overall concludes his parenting capacity is severely limited.

5. Against this background, it is not surprising that the children present with cognitive delays and speech problems.  N appears to have selective mutism, a condition which is psychological in origin and which Ms S says may be a response to the trauma she witnessed in her parents’ care.

6. Concerning the children’s time with their father, in her report, Ms S recommended that the children spend time with him as follows:

   ·    one day a month – daytime only and with no overnight visits;

   ·    the contact is held in T;

   ·    there be a suitable supervisor appointed (the father’s older daughter may be appropriate);

   ·    phone contact should be weekly. 

7. When the hearing commenced the father still sought unsupervised, alternate weekend and half school holiday time with the children.

8. When this Div 12A hearing resumed on 22 September 2008 Ms S gave evidence. Prior to so doing, she conferred with the Independent Children’s Lawyer.  At the Independent Children’s Lawyer’s request, Ms S reviewed and then commented upon a suite of draft orders then in contemplation by the Independent Children’s Lawyer. Ms S commented favourably upon the Independent Children’s Lawyer’s draft proposals. These included that the father would spend time with the children for periods of 2-2½ hours unsupervised and supervised overnight by his adult daughter, Ms A. The proposals included a range of orders aimed at further reducing the risks of harm to the children whilst with the father. To these, Ms S recommended further conditions which required the father to spend any unsupervised time in a public place away from his home (including the caravan park), as well as random drug screens.

9. During her oral testimony, Ms S opined that before N and H reach adolescence, it is desirable they complete an educative self-protective behaviours program.

10. Upon its release and by consent, the Independent Children’s Lawyer provided the Department of Community Services with a copy of Ms S’s report.

The Independent Children’s Lawyers Proposed Orders

1. After Ms S completed her oral testimony, the maternal grandmother, father and Independent Children’s Lawyer reached agreement along the lines proposed by the Independent Children’s Lawyer.  Although until two weeks ago, and for the last two years, the mother has proposed the children have regular unsupervised time with the father, because the agreement involved unsupervised time, the mother withheld her consent.

2. The orders agreed between the Independent Children’s Lawyer, father and maternal grandmother are set out below:

   1.That the maternal grandmother, father and mother have joint parental responsibility for the children and the maternal grandmother with consult with the mother and father in relation to major decisions regarding the children’s health, education and religion but in the absence of agreement the maternal grandmother shall make such decisions and shall inform the mother and father.

   2.That the children, [Y] born […] November 2002, [N] born […] November 2003, and [H] born […] December 2004 (“the children”) spend time with the father as follows:

   2.1 on the first Saturday of each month from 10.00am to 1.30pm at a venue or venues other than the father’s residence;

   2.2 on the second and fourth Wednesday of each month from 3.00pm until 5.30pm and upon the child [Y] commencing school from the conclusion of school until 5.30pm at a venue or venues other than the father’s residence;

   2.3in the event of [Ms A] being available to supervise the time the children spend with the father the children will spend time with the father as follows:

   (a)      on the first Saturday of each month from 10.00am to   10.00am the following day;

   (b)      in the school holidays in Terms 1, 2 and 3 from      10.00am on the first Saturday until 10.00am on the   following Monday;

   (c)      in the Christmas school holiday period from 10.00am       on the first Saturday in January until 10.00am on the   following Monday.

   3.In the event that the father’s time falls on Christmas Day the father’s time with the children is suspended.

   4.That the father give the maternal grandmother at least 14 days notice in writing of [Ms A]’s availability to supervise the next occasion the father is to spend time with the children and thereupon the maternal grandmother shall notify the mother.

   5.That the unsupervised time which the father spends with the children shall be facilitated by the father and the maternal grandmother meeting at McDonalds at [K] except to the extent that when [Y] commences school the father will collect the children from school on the Wednesday.

   6.That the supervised time the father spends with the children be facilitated by [Ms A] collecting the children from the maternal grandmother at McDonald’s at [K] and returning them to the same place.

   7.At the request of the maternal grandmother in writing the father will submit to supervised urine analysis for illicit drugs within 48 hours of receipt of the request and provide a copy of the result to the maternal grandmother and mother.

   8.That the maternal grandmother be limited to six requests for urine analysis from the father per year.

   9.That the father not delegate his care of the children to any other person than [Ms A] during periods of time that the children spend with him.

   10.That the parties are restrained from discussing with the children the alleged incidents of sexual abuse or questioning them about potential sexual abuse by the father on the children.

   11.That the maternal grandmother authorise the children’s school from time to time to provide the parents with all correspondence that a parent would be provided with in the normal course of events with any associated costs being the responsibility of each parent.

   12.That the maternal grandmother authorises any medical practitioner, specialist or counsellor treating the children from time to time to provide either of the parents with all information that a parent would normally be provided with at his or her request with any associated costs to be the responsibility of each parent.

   13.That without admissions, the maternal grandmother, mother and father will not denigrate any party or family member of any party in the hearing or presence of the children and not expose the children to other people denigrating any party or member of a party’s family.

   14.That without admissions, the maternal grandmother, mother and father are hereby restrained from exposing the children to any form of interpersonal violence including verbal arguments.

   15.That without admissions, the mother and father are hereby restrained from exposing the children to persons affected by or consuming alcohol or non-prescription drugs, implements used for drug taking or any paraphernalia associated with drug taking.

   16.That without admissions, the maternal grandmother, mother and father ensure that at no times are the children in the care of adults affected by non prescription drugs or who have consumed more alcohol than the prescribed blood alcohol limit considered legal and safe for driving in New South Wales.

   17.That in the event the mother’s weekend time with the children falls on the same weekend that the father is to spend time with the children and notice has been given to the maternal grandmother in accordance with Order 4 herein then the mother’s time will occur on the following weekend. Otherwise the father’s time will occur on the following weekend. 

1. During closing addresses, the mother’s counsel advised that the mother consented to orders being made in terms of paragraphs 1, 7, 9, 11, 12, 13, 14, 15, 16 and 17 of the proposed orders.  In relation to proposed Order 10, it was submitted the order required amendment so that in the event the children disclosed sexual abuse, the maternal grandmother could deal with it. There was no opposition to the proposed amendment. 

2. Again, during closing addresses, the father’s counsel advised that the father, maternal grandmother and Independent Children’s Lawyer agreed he would spend time with the children each Father’s Day upon the same terms and conditions established by the proposed orders referred to above.

3. In a similar vein, the parties agreed the mother would have leave to make an application that she spends time with the children on Mother’s Day and Christmas Day.  This issue resolved by agreement with orders to be made in the following terms:

   1.The mother spend time with the children on Mother’s Day as agreed between the parties but failing agreement for a period of not less than four hours.

   2.The mother spend time with the children during Christmas as agreed between the parties, but failing agreement as follows:

   2.1 from 12.00 noon 23 December 2008 to 12.00 noon 24 December 2008; and

   2.2  commencing 2009, from 12.00 noon 24 December to 12.00 noon 25 December in odd numbered years and from 12.00 noon 25 December to 12.00 noon 26 December in even numbered years. 

4. So as to understand the effect of the various agreements and proposals, it is necessary to refer to earlier final orders, made on 23 June 2008 and which remain operative after the orders are made in these proceedings. On the same day interim orders were made for the father to spend time with the children at a contact centre. Because those orders expire upon the making of the orders identified at the start of these reasons they are not included.

Orders 23 June 2008

BY CONSENT IT IS ORDERED:

1.That the children, [Y] born […] November 2002, [N] born […] November 2003, and [H] born […] December 2004 (“the children”) live with the maternal grandmother [Ms J Lane]. 

2.That the children spend time with the mother each alternate weekend from 9.00 am on the Saturday to 5.00 pm on the Sunday, with this time to be implemented by the maternal mother delivering the children to the mother’s house at the beginning of this time and the maternal grandmother collecting the children from the mother’s house at the end of this time.

3.That in the event that the children’s time with the mother pursuant to Order 2 of these Orders is incompatible with the children’s time with the father pursuant to the interim Order 16 of 31 March 2008, the time with the mother will be suspended and take place on the following weekend.

4.That the children’s time with the mother is conditional upon the maternal grandmother being satisfied that the mother is well enough mentally and emotionally to properly care for the children, and in the event that the maternal grandmother is concerned that the mother is not well enough to have the children spend time with her, the maternal grandmother will:

4.1    request that [Mr G] or a worker from [Central Coast] Area Health Service (“the mental health worker”) to attend upon the mother;

4.2    arrange for the mental health worker to provide the maternal grandmother with a brief note setting out the mental health worker’s opinion as to the mother’s capacity to care for the children; and

4.3    suspend the children’s time with the mother pursuant to these Orders only when this is recommended by the mental health worker and only for such period of time as recommended by the mental health worker.

5.That the mother provides the Mental Health Unit at [T] with authority to provide the maternal grandmother with the information required in Order 4.

General Law in Parenting Cases

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;  and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential;  and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture;  and

   (b)      to have the support, opportunity and encouragement   necessary:

   (i)       to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance. 

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order:  Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)The time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays;  and

   (ii)days that do not fall on weekends or holidays;  and

   (2)the time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine;  and

   (ii)occasions and events that are of particular significance to the     child;  and

   (3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the Court then determines the parenting applications as outlined above.  Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply. 

8. The applicable standard of proof is the civil standard. If the Court is asked to make a positive finding that abuse has happened it does so by reference to s 140(2)(c) Evidence Act 1995 (Cth) and on the basis that the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235. If the Court determines it cannot or should not make a positive finding there has been abuse it must determine whether, by reference to s 140 Evidence Act there is an unacceptable risk of it. This involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components which go to make up that conclusion need not each be established on the balance of probabilities.  The Court may determine that the constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page (2007) FLC 93-344. These principles are applicable to all allegations of risk of harm, including family violence: A v A (1998) FLC 92-800.

9. The risk assessment findings address part of the Court’s responsibilities.  Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors:  see M v M (1988) 166 CLR 69.

10. If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events.  See A v A (1988) FLC 92-800.

Applying the law to the facts

1. The father is 58 years old. 

2. He lives in a rented caravan on the Central Coast of New South Wales. In the caravan he has a double bed and in the attached annex, there are three beds. The caravan has a stove and refrigerator. The annex contains a toilet and shower. The caravan park is adjacent to a creek. The land adjacent to the creek is in the process of being redeveloped and is presently surrounded by a 6 ft high tarpaulin. When the tarpaulin comes down, it is understood the development will be surrounded by a fence, separating the caravan park from the creek.

3. For the foreseeable future the father plans to reside in this rented caravan. For the limited periods when the children would have supervised visits with the father, the caravan provides adequate accommodation.

4. The father says he is an office manager by occupation. This appears to be reference to the work he performed for the decade he lived at B, a drug and alcohol facility on the New South Wales mid-north coast.  As earlier mentioned, the father has a history of major substance abuse and in 1990 he returned to B as a resident to address his drug and alcohol use. He lived there on and off for the following decade, during which time he worked in the office.  It does not appear he has had paid employment since. The father receives a disability benefit and it is unlikely he will return to the paid workforce.

5. The father last consumed alcohol on 29 April 1990. He readily concedes he is an alcoholic and, when drunk, is prone to violence. 

6. The father has used cannabis on and off since adolescence. During 2005 he was using cannabis and injecting amphetamines. He financed his drug use by selling cannabis. The mother’s and father’s home at L was well known in the local drug scene as a place where, from the mother or father, one could purchase cannabis. Although the father tried to create a different impression, I accept the mother’s evidence that she does not use drugs. Her involvement in selling drugs was as an adjunct to the father’s activities.  Concerning amphetamines, the father took these by injection, using at home, near a local hospital from where he obtained syringes and at a friend’s house. 

7. The father says he has not used amphetamines since late 2005 and cannabis for about 12 months. Attached to his affidavit is a drug screen which shows him to be free of illegal drugs as at May 2007. None of the parties or agencies with whom the father has had regular contact in the period since suggests he has appeared drug affected. No doubt the father has previously had longer periods where he has been drug and alcohol free. The length of his substance abuse history means it is likely this current period of apparent sobriety will end and he will resume at least cannabis use. It is to guard against the children being in the care of a drug affected parent, that the Independent Children’s Lawyer proposes that the maternal grandmother may six times a year require the father to undergo random urine drug tests. If the father fails to comply with the maternal grandmother’s request or produces a positive drug screen, the maternal grandmother will be entitled to suspend his time with the children until she is satisfied he is drug free.

8. By way of further protection, if when the father collects the children from her, the maternal grandmother believes he is affected by drugs or alcohol, she may and should suspend his time with the children.

9. Somewhat glibly, at paragraph 71 of his affidavit the father says “[i]n my earlier days I got into trouble for various things, but that has not been the case for over 20 years. I do not have any acts of violence in my history”. The father’s criminal history commences on 26 July 1961 and his last conviction was 2007. Doing the best I can with the exhibits, the father appears to have been convicted on 21 stealing offences, 11 break, enter and steal offences, 11 motor vehicle offences, 6 substance abuse offences being 2 PCA and 4 cannabis use offences and, in 1975, unlawful carnal knowledge of a girl under 17 years. The overwhelming majority of his offences occurred between 1970 and 1986. However, as my summary of the father’s substance abuse history reveals, the father’s criminal and anti-social behaviour is more extensive than his convictions. This picture is re-enforced by examinations of COPS entries produced under subpoena by the New South Wales Police Service (Exhibit C).  For example, on 2 May 2002 the owner of K Pawnbrokers Store called the police when the father, who is well known to them, presented a facsimile machine to be pawned. The facsimile machine was stolen that morning from the pawnbroker’s shop. The father left before police arrived.

10. A particular focus in these proceedings related to COPS entries of investigations in September and October 2005 of allegations made by five adolescent girls, in the 12-14 year old age bracket, concerning the father. In summary, the girls’ allegations include his offering to supply them drugs, actually supplying alcohol, exposing himself and attempting to engage in intimate contact.  Although two girls initially said they were willing to make statements, eventually all girls declined.  Police and Department of Community Services (DoCS) officers conducted a thorough investigation of the girls’ allegations but ultimately took no further action. Concerning the allegations, police closed their investigations with the following entry:

    Truth of matter unable to be determined.  Matter investigated by JIRT and determined same result. Police have attended the residence and made inspection of interior of house. Nothing suspicious located.  There is an obvious infighting between [Mr Waters] and his ex, [Ms Lane]. This of course means that there will be stories between [Ms Lane] and a number of juvenile females that are friends of hers and [Mr Waters].  Insufficient evidence to proceed at this time.  Other apparent witnesses are unwilling at this time to assist police. NSA Investigation.

11. Police and DoCS records all corroborate the mother and father’s evidence that the teenage girls were friends of the mother’s and congregated at the L property whilst the parties cohabited. After the parties stopped living together, the girls continued to visit the father from time to time and, when he moved to the caravan park, visited him there. Apart from their status as possible victims, the girls are identified as being part of a group of teenagers regarded as trouble makers.  Indeed DoCS expresses the view that the children with whose welfare I am concerned, may be at risk if left with teenagers.  Although it is not certain, it appears these same teenagers complained the mother behaved in a sexually inappropriate manner towards them.  As to the latter allegation, there is no suggestion it has any proper basis.

1. The father receives $525.00 per fortnight disability pension from which he pays $310.00 rent.  After paying $10.00 per fortnight for utilities, he has $205.00 per fortnight on which to live. He owns a motor vehicle. It is difficult to understand how the father can meet his necessary day to day living expenses and, as he says he will, take the children to movies, McDonalds and other activities when they are with him. Whilst the parties cohabited the mother managed their finances, with the father immediately falling into rental arrears when they separated. It is possible that he is still thieving. He is, however, subject to close police scrutiny and the evidence is insufficient for me to be satisfied he is. 

2. The effect of my above findings, is I am satisfied the father is an aging criminal of low moral tone. If the children have significant time with him it is highly likely they will be exposed to a criminal milieu and through his example possibly be enticed to follow the same path. This is another reason why the father’s time with the children must be closely contained. 

3. Although the father took umbrage with the suggestion, I agree with Ms S the totality of his circumstances reveals a low level risk to his daughters, in their adolescence, of sexual abuse. Were it not for his history of care of his own children this risk would have been assessed as being higher. 

4. The father’s daughter, Ms A gave evidence. She was a breath of fresh air and an impressive witness. Ms A’s parents separated when she was twelve months old.  Until she was three years old she lived with her mother. Aged three years, Ms A began living with her maternal grandparents with whom she lived until 2004.  Although living with her grandparents, Ms A spent significant time in her father’s care and he was a major childhood influence.  In 2004/2005 Ms A lived with the parties, in total for about five months. Since then she has lived and worked in Sydney. Ms A has full-time employment with a charitable organisation and will shortly commence trade qualifications in childcare. Ms A has a healthy and affectionate relationship with her father and there is no evidence he has ever mistreated her, sexually or at all. I am satisfied he has not.

5. In terms of the subject children, three years after the alleged event and after the parties separated, the mother alleged she saw the father insert a pencil in 12 month old N’s vagina. These allegations were raised with DoCS and JIRT.  Both agencies rejected the allegation. Ms S reviewed the relevant records and explored the issue in detail. She concluded the mother’s allegation appeared to have been made for forensic advantage and rejects it.  Apart from the delay Ms S opines that the following matters detract from the veracity of the mother’s claims:

   ·   The mother initially said the father inserted a pencil but now claims he touched N with his finger. She correctly observes that these are facts which are unlikely to be confused.

   ·   Sexual abuse of babies is extremely rare.

   ·   When N was one year old the mother complained to police that a 13 year old girl sexually abused the baby.  She later retracted this allegation.

6. I agree with Ms S it is highly unlikely the father sexually abused N in the manner the mother suggested.

7. Nonetheless against the background summarised above, it is difficult to see how it may be in the children’s best interests to spend time or communicate with their father. The answer to this question lies in the nature of the children’s relationship with him. 

8. Ms S observed the father and three children together concerning which she reports:

   All three children separated easily from their grandparents and all ran into the room and hugged their father when they saw him. The girls quickly disengaged and sat themselves at the desk, but [Y] remained in his father’s arms for a while. 

   Throughout the session the father related gently to the children. They all seemed relaxed in his presence. In fact, the children all seemed more animated the joyous than they had been in the previous day’s family and individual interviews. [N] in particular was more animated.  Although she still did not speak as much as an average four year old, she did have some quiet conversation with her father.  She smiled a good deal in this interview, although she was still generally quiet and undemanding.

   When I commented benignly (and in a general manner) about the children [the father] said, pointing to each child: “([N]) She’s like my grandmother the red hair. ([H]) She’s like my dad, her blue eyes. ([Y]) He’s the dead spit of me when I was a child”.

   When asked about the children’s personalities, [the father] told me that “[H] is bossy; [N] is quiet but can be bad tempered; and [Y] is a ‘dare devil’”.

   The girls played happily with the father and each other.  [Y] was           aggressive and his behaviour out of control which the father made no          serious attempt to contain. 

9. Ms S reports:

   [Y] at times was quite jealous of the girls getting any attention from their father. He was particularly provocative to [N], who would cry in response. At one stage when [H] and [Y] were both sitting on their father’s lap, [Y] put his arm around [H]’s neck and forcibly yanked her.  [The father] said “Don’t choke her”, but there was little admonishment in his voice.

   When told there was five minutes to go, [Y] said to his father:

   [Y]: “I want to go to your place, Daddy”.

   [The father]: “Soon, son”.

   When it was time to go, [Y] said “No” and kept his father in the room by wanting to take more photos. [H] then asked to go to her father’s place. [Y] began to angrily screw up all the drawings the children had done.

   I encouraged the father to leave.  He kissed all the children and said to me:

   “This (leaving the children) will knock me about.”

   Once the father had left, [Y] sat on the floor crying despairingly. He refused to leave my room to come back to the grandparents.  The girls ran back to them without any overt distress.

10. The children’s warm interaction with the father observed by Ms S is consistent with observations made in the DoCS file by DoCS and childcare workers and Family Consultant Mr D’s two reports. From the DoCS file, it is apparent the mother, father and children were under close departmental scrutiny. DoCS and police observe the children were frequently unkempt but fed and usually, but far from always, supervised.  The children were assessed as being at greater risk of harm from their mother than their father. The genesis for this assessment appears to relate to the mother’s inability to cope with the children when she was stressed or unwell. At least during 2005, the father is seen as playing a greater and more consistent role in the children’s care than the mother. Probably as a consequence of this, notwithstanding his limited parental capacity, it appears that prior to November 2005 the father and children established a strong connection.

11. After the children went into the maternal grandmother’s care, they continued to regularly spend time with the father.  Orders were made on 14 December 2005 that the children spend every weekend with him, which happened. This arrangement continued until July 2006 when the father moved from a caravan park back to B drug and alcohol facility.  Unable to have the children overnight at the centre, the father’s time with them reduced to four hours fortnightly.  This continued until interim orders made on 8 May 2007 which entitled the father to spend time with the children Saturday and Sunday (for a few hours each day) each alternate weekend.  He actually spent time with the children three hours on Saturday unsupervised.

12. The father’s time with the children stopped in November 2007 following the mother’s allegation that the father inserted a pencil into N’s vagina.  He did not see the children again until orders were made on 23 June 2008. Following upon these orders, the father has seen the children three times at Interrelate Contact Centres at two different Central Coast locations.

13. Although the father is grateful his visits with the children resumed, he says, seeing the children at a contact centre is limiting. The children are variously excited by the range of toys and activities at the centre but constrained by its physical limits. He says and I accept it is the case, that quite quickly the limitations imposed upon him and the children at the contact centre, will detract from the children’s ability to interact with him. If this is the only way the father can spend time with the children, he says he will abide the Court’s decision. However, he says the best chance he and the children have of maintaining and developing a meaningful relationship is if orders are made consistent with those proposed by the Independent Children’s Lawyer.

14. All parties and the Independent Children’s Lawyer agree the children are attached to the father and want to see him.  Clearly the children are too young to have any appreciation of the risks to their wellbeing which he poses.  Although the elder children express the desire of visiting the father at his home, they cannot analyse the risks which longer periods of time with him, in that location and on an unsupervised basis present. However, the children’s attachment to the father necessitates a carefully nuanced approach to the benefits to the children of maintaining this connection balanced with the risks involved in so doing. I agree with the Independent Children’s Lawyer’s approach and am satisfied it delivers the best outcome for the children. I place significant weight upon the maternal grandparents’ commitment to the children and their awareness of all the risk issues which the children’s contact with their father involves. The maternal grandmother is particularly vigilant for signs the children may have been mistreated or involved in inappropriate activities when with the father. Her vigilance is enduring and I have no doubt if she believes the children are at risk or the father breaches any of the conditions imposed upon him spending time with the children, she will take appropriate action.

15. I place significant weight upon Ms A’s evidence. Ms A is similarly aware of the reasons why she is asked to supervise the children’s time with the father. Ms A is strongly committed to her own relationship with her half-siblings. It is my assessment that she would not permit the father to behave inappropriately with the children or tolerate his breaching the conditions imposed upon his spending time with the children. She impressed me as a person who will take her supervisory responsibilities seriously and fulfil these diligently.

16. In closing addresses, the father’s counsel observed his client is acutely aware that if he achieves an outcome consistent with the Independent Children’s Lawyer’s proposals, he has no margin for error. By this I understood that the father acknowledges that if he breaches any of the conditions imposed upon him spending time with the children or involves them in anti-social behaviour, including stealing, in the future the best he could hope for is limited supervised visits with them. Without attempting to bind future courts this seems to me to be beyond dispute.

17. In the difficult balancing exercise which this case involves, I agree with the approach taken by the Independent Children’s Lawyer. In addition I include a series of precautions which enable the maternal grandmother to withhold the children if she reasonably believes the father is affected by drugs or alcohol or has otherwise breached the conditions of his spending time with the children.  Although this may result in future litigation, it is an essential prerequisite if the children’s relationship with the father is to be maintained without exposing them to unacceptable risks of harm.

18. For these reasons I make the orders identified at the beginning of this judgment.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan.

Associate: …

Date:  3 October 2008