Woodrow & Maulson

FAMILY COURT OF AUSTRALIA

WOODROW & MAULSON

[2011] FamCA 751

FAMILY LAW - CHILDREN – parental responsibility – with whom a child shall live – family violence perpetrated by both parents against each other throughout their relationship – family violence orders issued against father in protection of mother - children’s exposure to parents’ illicit drug use – mental ill health – mother withdrew from proceedings – no intervention by department – father held himself out as possessing desire and capacity to have children live with him – parties’ attitudes to the children and responsibilities of parenthood deficient – mother’s lack of commitment to children and withdrawal from children’s lives – unsubstantiated allegations of child sexual abuse made against father by former partner and more recent allegations of child sexual abuse by father – allegations accorded little weight – mother’s parenting proposal inconsistent with allegations – father demonstrated commitment to promote relationship between children and the mother – father willing to travel large distances to enable the children to spend time with mother – evidence that mother prioritises own needs above those of children – presumption of equal shared parental responsibility not to apply – orders for the father to have sole parental responsibility - orders for children to live with father

FAMILY LAW - CHILDREN – with whom a child shall spend time – orders for the children to spend supervised time with mother

Family Law Act 1975 (Cth) ss 4, 60K, 64B, 60B, 65D, 60CA, 65AA, 60CC, 61DA, 61B, 65DAC, 65DAE, 65DAA, 60CF, 68P, 68B, 114, 67ZC
Family Law Rules 2004 (Cth) r 2.05

Allesch v Maunz (2000) 203 CLR 172
Amador v Amador (2009) 43 Fam LR 268
B & B [2003] FamCA 274
B & K [2001] FamCA 880
L v T [1999] FLC 92-875
Marriage of Blanch [1999] FLC 92-837
Marriage of JG & BG [1994] FLC 92-515
Taylor v Taylor (1979) 143 CLR 1

APPLICANT:

Ms Woodrow

RESPONDENT:

Mr Maulson

INDEPENDENT CHILDREN’S LAWYER:

Attwaters

FILE NUMBER:

NCC

2111

2010

DATE DELIVERED:

29 September 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

5 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Davies

SOLICITOR FOR THE RESPONDENT:

Peter Hamilton & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sundstrom

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Attwaters

Orders

All former parenting orders relating to the children L, born on […] June 2006, and M, born on […] November 2007, (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
Unless otherwise agreed, each of the parties shall take all reasonable steps to ensure that the children spend supervised time with the mother for three hours each month.
For the purpose of implementing Order 4 hereof:
(a)The supervisor of the time spent by the children with the mother shall be staff at Contact Centre 1 in Newcastle (“the supervisor”).
(b)The parties shall forthwith contact the supervisor to register and complete the intake assessment.
(c)The mother and father shall comply with all reasonable requests and directions of the supervisor.
(d) The parties shall pay the costs of the supervisor in equal shares.
(e)The time that is to be spent by the children with the mother shall commence at the time designated by the supervisor.
(f)The father shall cause the delivery of the children to, and the collection of the children from, Contact Centre 1 at the commencement and conclusion of the time spent by the children with the mother.
Order 4 is suspended if:
(a)The mother fails to attend two consecutive visits made by the children to Contact Centre 1; or
(b)In the opinion of the supervisor, the mother attends a visit made by the children to Contact Centre 1 under the influence of alcohol or some other intoxicating substance.
Leave is granted to the parties to provide a copy of these orders to the supervisor.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with the mother each Wednesday, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other party about the condition and treatment of the children.
The father shall authorise and request the principal of any pre-school or school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or compliance with Order 14, whichever is the latter.
Any and all outstanding applications are dismissed.

Notation

(A)These orders may be inconsistent with an existing Apprehended Violence Order made against the father in favour of the mother by the Local Court of NSW in or about June 2010, in which event Division 11 of Part VII of the Family Law Act 1975 (Cth) would apply and these orders would prevail to the extent of any inconsistency.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2111of 2010

Ms Woodrow

Applicant

And

Mr Maulson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The children who are the subject of these proceedings have so far been deprived of the opportunity to lead safe, stable and healthy lives because of the difficulties confronted by the parents in their own lives.
The evidence before the Court represents a sad catalogue of the children’s exposure to the parents’ illicit drug use, mental ill health, and perpetration of family violence. While neither parent intends harm to the children, that is the inevitable result of their conduct.
The candid assessment of the Family Consultant is the parenting capacity of both parents is seriously compromised. Nonetheless, the residential options for the children dwindled. The mother withdrew from the proceedings, no other relative came forward as a permanent carer, and the NSW Department of Human Services declined an invitation to intervene. Only the father held himself out as possessing the desire and capacity to have the children live with him.

Short history

The parties began their relationship in approximately April 2003 and finally separated on 27 May 2010.[1]
[1] Father’s affidavit, par 5
The two children born to the parties’ relationship were L, born in June 2006, and M, born in November 2007.[2] The children are currently aged five and three years respectively.
[2] Father’s affidavit, par 4
The mother was the primary carer for the children during the parties’ cohabitation.[3] However, upon the parties’ separation, the mother vacated the family home to live with another man,[4] leaving the children in the care of the father.
[3] Father’s affidavit, par 12
[4] Father’s affidavit, pars 25, 30
Thereafter the father moved with the children to live with another woman, then with a former partner, and then with the paternal grandfather in the Town 1/Northern Rivers district.[5]
[5] Father’s affidavit, pars 30-31
In July 2010 the father instructed his solicitors to correspond with the mother about formalising parenting arrangements for the children, but the mother contemporaneously moved to commence these proceedings in August 2010 before the Federal Magistrates Court.[6]
[6] Father’s affidavit, pars 32-36
The mother’s application for final and interim parenting orders was first returnable before the Court on 17 August 2010. The Court made orders that day which invited the NSW Department of Human Services to intervene in the proceedings, appointed the Independent Children’s Lawyer, and transferred the proceedings to this Court. The Department later notified the Court that it would not intervene in the proceedings.
On 27 September 2010, interim parenting orders were made by Ryan J with the consent of the parties, which relevantly provided for:
a)The children to reside with the father (Order 2), with the father and children to remain resident at the home of the paternal grandfather in the [Town 1/Northern Rivers] district (Order 4);
b)The children to spend time with the mother for two hours per fortnight, supervised alternately by the [Town 1] Contact Centre and a former partner of the father, [Ms C], at her home in Newcastle (Orders 3(a) and 3(b));
c)The children to communicate with the mother by telephone twice per week (Order 3(c));
d)Both parties to provide random urinalysis results upon demand by the Independent Children’s Lawyer (Order 5);
e)The father to attend both domestic violence counselling and drug and alcohol counselling (Order 6); and
f)The mother to attend a drug rehabilitation and detoxification program (Order 7).
The Court additionally ordered, without consent from the parties, restraint of the parties from intoxication in the presence of the children, and the expenditure of time by the children with the mother was conditional upon her not being intoxicated (Orders 8 and 9).
The orders made in September 2010 providing for the children to spend time with the mother were only the subject of partial compliance. The children spent supervised time with the mother at the home of Ms C in Newcastle on several occasions, but never at the Town 1 Contact Centre because the mother failed to register at and travel to that Centre.[7] Enquiries made by the Family Consultant verified the father’s evidence.[8]
[7] Father’s affidavit, pars 42-44
[8] Family Report, pars 11-12
Those orders were amended slightly on 28 February 2011, with the consent of the parties. In particular, the father was permitted to relocate with the children away from the paternal grandfather’s home in the Town 1/Northern Rivers district, provided he returned with them to the environs of Newcastle, Northern Newcastle district, or lower Hunter Valley (Orders 1.1, 1.2). In the event of such relocation, the children were to spend supervised time with the mother for two hours per fortnight at Contact Centre 1 in Newcastle (Orders 1.3, 1.4, 1.5). The father’s stated intention to imminently relocate with the children back to this area was the reason given for the amendments (Notation C).
The orders made in February 2011 providing for the children to spend supervised time with the mother were ignored by the mother who failed to register at Contact Centre 1.[9]
[9] Father’s affidavit, pars 51-53
The upshot of those developments is that the children have not spent any time with the mother since January 2011, when supervised by Ms C.[10] Nor has the mother communicated with the children since January 2011, despite the father providing her with a phone card in the past.[11]
[10] Father’s affidavit, par 54
[11] Father’s affidavit, par 55
In May 2011 the father and children vacated the paternal grandfather’s home in the Town 1/Northern Rivers district. The father encountered difficulty finding alternate accommodation for himself and the children so he arranged for the children to live temporarily with a maternal aunt in Town 2/Central Tablelands.[12] The father was unable to find accommodation for himself and the children in Newcastle, but ultimately did in Town 2/Central Tablelands, where he now intends to permanently stay with the children.[13]
[12] Father’s affidavit, pars 58-59
[13] Father’s affidavit, pars 62-68
The trial proceeded on 5 September 2011 in the absence of the mother, which it is now necessary to explain.

Absence of the mother

Although the mother commenced these proceedings by filing her Initiating Application on 12 August 2010, her involvement was inconsistent and she eventually withdrew from participation in the litigation.
On 14 February 2011 the mother failed to attend an appointment with the Family Consultant for a continuation of the Child Dispute Conference,[14] although she did later appear with her solicitor at Court on 28 February 2011 when the interim parenting orders were amended.
[14] Family Report, par 13
The mother then attended for her initial interview with the Family Consultant on 6 July 2011, but did not attend the second interview on 9 August 2011 and attempts by the Family Consultant to contact her were unsuccessful.[15]
[15] Family Report, introduction
The mother’s solicitor filed a Notice of Ceasing to Act on 5 July 2011 and the mother failed to appear at Court on 11 July 2011,[16] at which time orders were made confirming the trial on 5 September 2011 and directing the parties’ attendance upon the Family Consultant on 9 August 2011.[17]
[16] Notation B made on 11 July 2011
[17] Orders 1-2 made on 11 July 2011
As required by Court orders,[18] the father’s solicitor notified the mother in writing of the orders made on 11 July 2011 and confirmed the trial was to commence on 5 September 2011.[19]
[18] Order 3 made on 11 July 2011
[19] Exhibit F1
The mother appeared at Court for the trial on 5 September 2011, but she was unrepresented and thoroughly unprepared for trial. She had filed no affidavit evidence since she commenced the proceedings in August 2010 and contended she was unaware of the withdrawal of representation by her former solicitor. The mother confirmed her residential address, it being the same address notified to the Court by her former solicitor in the Notice of Ceasing to Act and the address to which the father’s solicitors corresponded with her. Although the mother denied receiving either the notice of her own solicitor’s withdrawal or the letter from the father’s solicitor confirming the trial date, her appearance proved her awareness of the trial date. The mother conceded she had done nothing to ready her case for trial, nor had she contacted her solicitor concerning preparation for trial, which would have revealed to her the solicitor’s withdrawal of representation and the need to make alternate arrangements.
The matter was temporarily adjourned to permit the mother to seek advice from the duty solicitor, principally about whether she would make an application to adjourn the trial or negotiate a settlement.
When the Court later reconvened the duty solicitor appeared for the mother amicus curiae.
The mother and father then tendered final consent orders to the Court for ratification,[20] but the Independent Children’s Lawyer disagreed with the proposed orders. The Independent Children’s Lawyer also tendered a minute of an additional order, which was not the subject of consent from either the mother or father.[21]
[20] Exhibit B
[21] Exhibit C
In the course of debating the viability of the proposed orders in open Court the mother, apparently dissatisfied with the process, left the Court in a state of agitation and did not return. The duty solicitor then also withdrew from the proceedings, she holding no further instructions from the mother.
In the absence of the mother, and with disagreement between the father and Independent Children’s Lawyer about the orders, there was no option but to proceed with the trial. When the father and Independent Children’s Lawyer later reached agreement, the orders they proposed were different from those earlier proposed by the parties and therefore did not enjoy the mother’s consent, necessitating continuation of the trial. The Court was not required to indefinitely delay proceedings merely because the mother declined to appear and participate (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).
Regrettably, the mother’s voluntary withdrawal from further involvement in the litigation deprived her of the opportunity to be heard about the parenting orders that should properly be made for the children.

Proposal and evidence of the father

Until the commencement of the trial, the father proposed the orders set out within his Amended Response filed on 30 June 2011, which essentially provided for:
a)The father to have sole parental responsibility for the children (Order 1);
b)The children to live with the father (Order 2);
c)The children to spend time with the mother under a complicated regime, conditional upon the mother undertaking long-term residential drug rehabilitation, her submission to random urinalysis, and her provision of suitable accommodation for the children (Orders 3-12, 15);
d)Restraint of both parties from misuse of alcohol and use of illicit drugs, and from exposing the children to such conduct by them or others (Order 14); and
e)Restraint of the mother from permitting interaction between the children and her current partner (Order 21).
When the mother initially appeared at trial the father struck an agreement with her about parenting orders. They jointly proposed:[22]
a)The parties have equal shared parental responsibility for the children (Order 1);
b)The children live with the father (Order 2);
c)The children spend supervised time with the mother at [Contact Centre 1] in Newcastle no more frequently than once per month, with the times and dates to be specified by the Contact Centre (Orders 3-5), and at such other times as the parties otherwise agreed (Order 6); and
d)Restraints upon the parties from being in the presence of the children whilst intoxicated (Order 7).
[22] Exhibit B
Once the mother departed the Court evincing an intention to abandon the proceedings the father tendered a fresh minute of order, which replicated the proposed consent orders in all respects except for the order in respect of parental responsibility. The father reverted to his proposal that he have sole parental responsibility for the children.[23]
[23] Exhibit F2
The father relied upon his affidavit filed on 10 August 2011.

Proposal of the independent children’s lawyer

The Independent Children’s Lawyer eventually supported the orders proposed by the father, upon the withdrawal of the mother from the proceedings. The father was not required for cross-examination.
The Independent Children’s Lawyer did however continue to press for the additional order set out in the minute tendered.[24] That order proposed the mother’s adherence to the interim order made on 27 September 2010, requiring her participation in drug rehabilitation.
[24] Exhibit C

The Independent Children’s Lawyer relied upon the evidence of the Family Consultant, contained within her affidavit sworn on 15 August 2011. The Family Consultant was not required for cross-examination by either the Independent Children’s Lawyer or the father.

Summary of parenting law

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode v Goode [2006] FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Children’s best interests – primary considerations

Section 60CC(2)(a)

The children’s relationships with the father are not as secure as might be expected, given that the children have lived with him since the parties separated in May 2010.
In consultation with the Family Consultant the eldest child identified her closest relationship as that with her younger sister.[25] The eldest child demonstrated some ambivalence about her relationship with the father.[26]
[25] Family Report, par 67
[26] Family Report, par 69
Likewise, the youngest child described a positive relationship with the eldest child and demonstrated ambivalence about her relationship with the father.[27]
[27] Family Report, par 78
It is difficult to determine the nature of the children’s relationships with the mother because the mother failed to attend the session with the children under the observation of the Family Consultant. The children have had very little interaction with the mother for well over a year, but the eldest child sadly told the Family Consultant she missed the mother.[28] The youngest child presented to the Family Consultant as confused about her relationship with the mother.[29]
[28] Family Report, par 70
[29] Family Report, par 79
The evidence permits a finding that the children’s relationships with the parties are important to them, but considerably less meaningful than those filial relationships should be.
The children have experienced considerable anxiety, most probably by reason of the fracture of their relationships with the mother and their residential instability in the care of the father, aside from their exposure to family violence.
At least until recently, the youngest child has been so anxious that she chewed the skin from her hands.[30] However, both the maternal aunt and the staff at the children’s pre-school reported to the Family Consultant that both children are more settled of late.[31] I impute the maternal aunt has been a steadying influence in the lives of the children and their regular attendance at pre-school has permitted them to form valuable peer relationships.
[30] Family Report, par 64
[31] Family Report, pars 64, 73, 81
The children will benefit from having meaningful relationships with both parties in the future, but the children will not derive a full measure of benefit from those relationships unless the parties each significantly improve their parenting performance.
The mother in particular needs to demonstrate her commitment to the children, who are puzzled and saddened by her withdrawal from their lives.

Section 60CC(2)(b)

The frank assessment of the Family Consultant about the children’s exposure to harm by the parties was as follows:[32]
It would appear that these children have been at physical and psychological risk of harm in the care of both parents since their birth as a result of issues of alleged family violence and parental substance abuse…
Given the extremely vulnerable ages of these children and the issues considered in this matter…the proposals of both parents have the potential to place these children at ongoing physical and psychological harm.
[32] Family Report, pars 88, 95
Such a conclusion is really unavoidable on the evidence. The children’s exposure to family violence is obvious and lamentable. The allied issues of illicit drug use and mental ill health are discussed later in these reasons.
Family violence has blighted the parties’ relationship for most of its existence.
The mother’s allegations of the father’s commission of family violence upon her are corroborated by police records,[33] including the father’s conviction for assaulting the mother in or about May 2009.[34]
[33] Family Report, par 35
[34] Family Report, par 8
The mother’s allegations of the father’s violence are disturbing. She alleged he pushed her, punched her, spat at her, and threatened to stab her and burn her and her new partner in their house.[35]
[35] Family Report, pars 35-36
The father admitted to the Family Consultant he “hit [the mother] ages ago”, but denied his perpetration of recent violence upon the mother. Inconsistently, the father told the Family Consultant at a previous meeting that he had been physically and verbally abusive to the mother occasionally throughout the relationship, which abuse entailed pushing her, hitting her in the face with an open hand, and punching her in the ribs. The father protested he had “never really hurt her”, but rather alleged the mother had been physically abusive towards him causing him “four broken noses”.[36] The father also conceded his abuse and intimidation of previous partners, which was the subject of other police records.[37]
[36] Family Report, par 50
[37] Family Report, par 52
At least some of the father’s reciprocal allegations against the mother must be accurate because the mother was convicted of assault upon the father in 2004.[38]
[38] Family Report, par 34
Amazingly, the father told the Family Consultant he did not believe family violence had been a “significant issue with respect to the wellbeing of the children”.[39] Perhaps that was because the father believed the children did not actually see the violence, even though they may have been present.[40]
[39] Family Report, par 50
[40] Family Report, par 51
The father’s perception about the effects on children of their exposure to family violence is sadly mistaken, but in any event, factually incorrect. Police records reveal the children were witnesses to at least one violent incident between the parties in January 2010 which required police intervention. The children were involved to the extent that they too were screaming profanity.[41]
[41] Family Report, par 51
The Court has long accepted as correct that family violence has a pervasive effect upon children, even if they are not directly involved as a victim of, or witness to, violent conduct. It is wrong to assume that family violence can only be harmful to children if it is directed towards them or takes place in their presence. Violence associated with a pattern of dominance by one parent over another, of which the children are aware, is particularly insidious. Children who grow up in such a climate of violence and dominance are exposed to an unacceptable model of family relationships. They can suffer insecurity, fear, unhappiness, anxiety, and hyper-vigilance from witnessing abusive behaviour by a parent, which is damaging and threatens their emotional development (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33-37]; Amador v Amador (2009) 43 Fam LR 268 at [95]).
I accept the validity of the Family Consultant’s assessment about the harm suffered by the children as a consequence of their exposure to family violence committed between the parties.
The Family Consultant remained concerned about the father’s capacity to prevent the children’s further exposure to family violence.[42] The prospect of hostile confrontations between the parties is minimised by the orders not requiring any interaction between them on a face-to-face basis, but it is beyond the capability of the Court to prevent violence between the father and third parties.
[42] Family Report, par 93
There is no direct evidence before the Court of physical abuse of the children, but the Family Consultant did report concern about the manner in which the father disciplines the children.[43] To abate any risk of physical abuse an order is made restraining the parties from using corporal punishment upon the children.
[43] Family Report, pars 69, 75
The issue of the children’s exposure to sexual abuse at the hands of the father also arose in the evidence.
When conferring with the Family Consultant, the mother alleged awareness of previous allegations of child sexual assault made against the father by a former partner.[44] The mother also alleged her awareness of more recent allegations of child sexual abuse by the father, but was unable to usefully elaborate.[45]
[44] Family Report, par 39
[45] Family Report, par 39
Presumably the allegations were only mentioned by the mother to bolster her then pending claim for the children to live with her, but the allegations are accorded little weight for a number of reasons, and no specific order is made by the Court addressing the issue.
The Family Consultant was apparently unconvinced the mother was genuinely concerned about the allegations,[46] which demeanour was reflected in her parenting proposals. The orders sought by the mother in her Initiating Application filed on 12 August 2010 proposed the children spend expansive, unsupervised time with the father. The consent orders proffered to the Court by the mother at the commencement of the trial proposed the children live with the father. Those proposals tend to be inconsistent with the mother holding any real concern the father may molest the children.
[46] Family Report, par 39
The father admitted to the Family Consultant that child sexual abuse allegations were previously made against him by a former partner, but he flatly denied the allegations, which were formally investigated and unsubstantiated.[47]
[47] Family Report, par 53
The father also admitted that allegations of sexual abuse of the children were recently made against him by his estranged sister, but he contended the allegations were malevolent and untrue. He voluntarily approached the police to refute the allegations.[48]
[48] Family Report, par 54
The father’s denial and explanation of the two sets of allegations remains unchallenged, even by the Independent Children’s Lawyer. The mother failed to investigate the allegations or adduce any further evidence to contradict the father.
It is of residual concern that the staff at the children’s pre-school reported to the Family Consultant they observed one incident of sexualised behaviour by the eldest child,[49] but even so, there is no evidence to link that behaviour to any impropriety of the father.

Children’s best interests – additional considerations

[49] Family Report, par 74

Section 60CC(3)(a)

There is no evidence of the children expressing any views about their parenting arrangements. The children are still too young and immature for their views to be accorded any weight in any event.

Section 60CC(3)(b)

The nature of the children’s relationships with the parties has already been addressed under s 60CC(2)(a). There is nothing to add.
The children have regular meaningful interaction with the maternal aunt and other members of the extended maternal family, including their half-sisters.[50]
[50] Family Report, pars 15-16, 45, 67
The children’s former relationship with the paternal grandfather has been severed, apparently because of his impatience with them.[51] There is no evidence of the children’s relationships with any other members of the extended paternal family.
[51] Family Report, par 44

Sections 60CC(3)(c), (4)

Although the father was critical of the mother to the Family Consultant,[52] and apparently also in conversation with the children,[53] I generally accept the submission of the father’s counsel that the father has demonstrated his commitment to promote the relationships between the children and the mother. His commitment to that objective has vacillated, but most likely because his commitment is tempered by his concern about the children’s welfare in the mother’s unsupervised care.
[52] Family Report, par 57-58
[53] Family Report, par 69
I am not as pessimistic as the Family Consultant about the father’s capacity to “uphold positive relationships for the children with the mother”.[54] The father’s commitment to retention of the children’s relationships with the mother is evidenced in numerous ways.
[54] Family Report, par 93
Most obviously, the father was willing, at some considerable personal inconvenience and expense, to adhere to the interim parenting orders made in September 2010 which required him to drive the vast distance from Town 1/Northern Rivers to Newcastle every few weeks to enable the children to spend time with the mother. He discharged that obligation without complaint.
Even now, the father remains prepared to regularly travel the considerable distance from Town 2/Central Tablelands to Newcastle on a monthly basis to ensure continuity of interaction between the children and the mother.
Despite his concerns about the mother, the father has been far from avoidant of the maternal family. He readily sought assistance from the mother’s sister to care for the children when he experienced difficulty in securing alternate accommodation upon relocation from the paternal grandfather’s home in the Town 1/Northern Rivers district some months ago. The father and children now live within the same district as the maternal aunt, who remains an active participant in their daily lives. The maternal aunt conveys the children to day-care each day and ensures their involvement with other members of the broader maternal family.[55]
[55] Family Report, par 19
Although the mother feels betrayed by her sister,[56] there is no evidence to suggest anything other than that the maternal aunt has been prepared to intervene and act in the best interests of the children, and the mother’s older children, when she has perceived the need to do so.
[56] Family Report, par 40

Section 60CC(3)(d)

The orders do not entail any change to existing circumstances. The children have experienced infrequent interaction with the mother since separation. That is likely to continue, having regard to the mother’s apparent attitude.
If the mother is able to find it within her to register with the Contact Centre then the children will spend time with her intermittently under supervised conditions, similarly to the children’s experiences with her in late 2010 pursuant to the consensual interim orders made on 27 September 2010.
The orders do not introduce any significant changes to which the children are expected to adjust.

Section 60CC(3)(e)

The orders require the father to make the children available to spend supervised time with the mother at a Contact Centre in Newcastle. That is expressly designed to suit the mother, who continues to live in Newcastle. It could not be reasonably said the mother will incur practical difficulty or undue expense in availing herself of the orders.
The father and children now live in the Town 2/Central Tablelands district in western NSW. The orders will entail expense for him, and also travel at some inconvenience to him and the children, but the orders were proposed in those terms by the father.
As for telephone communication, an expectation that the mother meet the expense of any telephone calls she desires to make to the children is not unduly expensive or impractical.

Section 60CC(3)(f)

The parenting capacity of the mother is compromised, and has been for a protracted period of time.
The mother has two older children from a former relationship who are now aged eleven and eight years. They were removed from the mother’s care by the maternal aunt in 2004 and have lived with their biological father in Town 3/Blue Mountains pursuant to parenting orders made by the Court at or around that time. By her own admission, the mother rarely sees those children, inferentially because of her lack of inclination.[57] There is no evidence of any impediment that precludes her interaction with those children.
[57] Family Report, pars 4, 40
The mother has struggled to maintain consistent involvement in this litigation, even though it was instigated by her.
The mother has been unable to muster the resolve to maintain consistent contact with the children pursuant to orders made with her consent in both September 2010 and February 2011. Her only explanation to the Family Consultant for such apparent disinterest was that she would feel “uncomfortable” about being supervised with the children and it makes her “feel too upset” speaking with them on the telephone.[58] That is hardly a persuasive explanation. Apart from anything else, it demonstrates the mother places her own comfort above the children’s need for secure and reliable relationships with her. I accept the Family Consultant’s opinion the mother prioritises her own needs above those of the children.[59]
[58] Family Report, par 37
[59] Family Report, par 37
The Family Consultant found the mother’s physical appearance and emotional state had deteriorated in the period between August 2010 and July 2011, whereas the mother thought her mental and physical health had actually improved over that period.[60] I am more inclined to accept the accuracy of the Family Consultant’s assessment.
[60] Family Report, par 30
The mother’s emotional state has been unstable for a worryingly long period. As a consequence of police involvement, the mother submitted to mental health assessments at various mental health institutions in June 2004, September 2009, and January 2010.[61] Although each assessment recommended the mother undertake “drug and alcohol intervention”,[62] on her own admission to the Family Consultant, she has never done so.
[61] Family Report, par 38
[62] Family Report, par 38

The father’s parenting capacity is also impaired. As with the mother, his past efforts at drug rehabilitation are also unsatisfactory. Although the father now professes having no problem with drug use, he made relatively recent admissions in March 2009 to hospital staff that he would require drug and alcohol intervention his “whole life”.[63] The father’s refusal to accept drug and alcohol counselling because he has allegedly been abstinent since May 2011[64] is far from convincing or comforting to the Court.
[63] Family Report, par 46
[64] Family Report, par 47
Whilst seemingly more stable than the mother, the father’s emotional state is unsettled. He told the Family Consultant that he was stressed and had recently thought he may “hurt [himself] or someone else – on a violent rampage”. The father sought assistance from a doctor and was prescribed anti-depressant and anti-psychotic medication, which he used for a short time. The father has a history of emotional instability extending back over a decade, including a suicide attempt. The father is resistant to any further mental health assessment or intervention.[65]
[65] Family Report, pars 55-56
The Family Consultant stated that there is a widely acknowledged relationship between “substance abuse” and “mental health issues”.[66] I accept that evidence. The apparent confluence of illicit drug use and mental ill health in the lives of both parties over a period of many years represents a significant and continuing problem for both of them.
[66] Family Report, par 91
The Family Consultant opined:[67]
…mental health assessment and intervention, in conjunction with appropriate drug and alcohol intervention, may be necessary for both parents if they are to achieve and sustain adequate personal wellbeing necessary to uphold consistent and effective parenting.
[67] Family Report, par 91
I accept the veracity of that assessment. Unfortunately, submission to mental health assessments and drug rehabilitation will be futile unless the parties willingly embrace such improvement in their lives. They have shown no such inclination thus far.
Although the Family Consultant considered the father lacked insight about his “substance abuse”,[68] the father did display a modicum of insight when he told the Family Consultant the children’s separation from the mother had been difficult for them.[69] He continues to demonstrate insight by recognising the advisability of residing near the maternal aunt and soliciting her help to parent the children.[70]
[68] Family Report, par 90
[69] Family Report, par 58
[70] Family Report, par 59
It would seem the father is also struggling to adequately provide for the children’s physical needs. Staff at the eldest child’s current pre-school reported to the Family Consultant that the personal hygiene of the children is unsatisfactory, in that they are unbathed and their clothes are unwashed.[71]
[71] Family Report, par 74

Section 60CC(3)(g)

Apart from those concerns mentioned elsewhere in these reasons, there was no other aspect of the parties’ maturity, sex, lifestyle or background submitted to be relevant to the outcome of the proceedings.

Section 60CC(3)(h)

Neither party identifies themselves or the children as Indigenous Australians.

Sections 60CC(3)(i), (4)

The parties’ attitudes to the children and the responsibilities of parenthood are sadly deficient. That is perhaps best demonstrated by their mutual failure to comply with Court orders.
The parties were ordered to submit to urinalysis to prove their abstinence from illicit drugs.[72] Neither party complied.
[72] Order 5 made on 27 September 2010
The father was ordered to participate in domestic violence counselling.[73] The father did attend the “[Men’s Counselling Centre]” in Town 1/Northern Rivers for that purpose, but enquiries made by the Family Consultant revealed the father’s participation was both limited and disingenuous.[74]
[73] Order 6(a) made on 27 September 2010
[74] Family Report, par 23
The father was ordered to participate in drug and alcohol counselling.[75] The father asserted he received such counselling simultaneously with his domestic violence counselling, but the enquiries of the Family Consultant revealed that was not so.[76] He has therefore seemingly not submitted to such counselling.
[75] Order 6(b) made on 27 September 2010
[76] Family Report, par 23
The mother was ordered to undertake drug rehabilitation and a detoxification program and accept any other treatment recommended by her counsellor.[77] The mother did attend a drug and alcohol rehabilitation program at Town 4/Hunter Region, but withdrew after only one week because she “couldn’t handle it”.[78] Similarly, past efforts made by the mother in 2005/2006 to rehabilitate from drug use failed.[79]
[77] Order 7 made on 27 September 2010
[78] Family Report, pars 24, 32
[79] Family Report, par 32
The financial cost of the parties’ addictions or dependencies previously deprived them of the ability to shop for provisions and pay living expenses.[80] There is little reason to think that may not continue to be the case.
[80] Family Report, par 49
Since separation, the mother has done nothing to participate in decisions affecting the lives of the children. The mother may honestly believe that any effort would have been thwarted by the father because of enmity between them, but the evidence does not even demonstrate an attempt by the mother.

Section 60CC(3)(j)

The issue of family violence has already been discussed as a primary consideration pursuant to s 60CC(2)(b). There is nothing to add.

Section 60CC(3)(k)

Family violence orders have been a feature of the parties’ interaction over the last few years. Unfortunately, no direct evidence was adduced about the terms of the orders made.
An order was made against the father for the protection of the mother in or about May 2009.[81]
[81] Family Report, pars 8, 35
Another order was made against the father for the protection of the mother in June 2010, which order is to endure for two years. The order apparently precludes the father from contacting the mother by any means. The father was convicted of breaching the order in about July or August 2010.[82]
[82] Family Report, pars 10, 35
Although that order is still current, no copy of the order was filed in accordance with the Act (s 60CF) and Family Law Rules (r 2.05). Accordingly, it is impossible for the Court to explain any inconsistency between the family violence order and the parenting orders, or to forewarn relevant authorities of any such inconsistency (s 68P).

Section 60CC(3)(l)

The orders preserve the parenting arrangement that has now prevailed since the parties’ separation, and replicate interim orders agreed between the parties on two past occasions. Such orders are least likely to lead to further proceedings over the children.
However, the orders require the time spent by the children with the mother to be supervised by Contact Centre 1 in Newcastle. Although there was no evidence adduced to this effect, it is reasonably well known that the Contact Centre is reluctant to provide its supervisory services on an indefinite basis. To cater to that contingency, the orders require supervision by that Contact Centre, unless otherwise agreed between the parties. If the Contact Centre unilaterally withdraws its services to the parties after a period of time, and if the parties are then unable to reach alternate arrangements amicably, further proceedings in respect of the children seem inevitable.

Section 60CC(3)(m)

The reluctant willingness of the maternal aunt to remain involved in the care of the children is likely to be of enormous benefit to the children. She previously intervened in the mother’s life to ensure the mother’s eldest two children were afforded proper care.[83] She has now intervened in the father’s life, determined to ensure the children remain together and receive adequate parental support.[84] Her involvement provides the Court with a great deal more comfort about making orders that the children live with the father.
[83] Family Report, pars 4, 40
[84] Family Report, pars 60-64

Parenting orders

The presumption of allocation of equal shared parental responsibility for the children to the parties does not apply because of the findings about past family violence (s 61DA(2)). Even if the presumption applied, the evidence would rebut it (s 61DA(4)).
The parties are patently incapable of rationally and harmoniously communicating with one another over issues of long-term importance to the children. The mother’s attitude towards the father is particularly adverse. Shortly before she departed the Court on the day of trial she was agitated, muttering angrily, and shooting venomous glances at the father.
The Family Consultant was against the allocation of equal shared parental responsibility to the parties.[85] Both the father’s counsel and Independent Children’s Lawyer submitted the mother’s behaviour served to demonstrate that the parties could not co-parent the children successfully. I accept that evidence and those submissions.
[85] Family Report, par 96
It is self-evident the party with whom the children should live must also have sole parental responsibility for the children.
It is equally self-evident the father must be that person, notwithstanding misgivings about his parenting capacity. There is no alternative. Even the mother ultimately recognised, by her adoption of the proposed consent orders,[86] the children should live with the father.
[86] Exhibit B
It remains to determine the circumstances under which the children spend time and communicate with the mother, if at all.
I am satisfied the children should spend time with the mother. The children do have important relationships with her, despite their puzzlement over the interruption of those relationships, which should be preserved.
However, there can be little doubt the time spent by the children with the mother should be supervised. That conclusion is necessitated by the uncertainty that attends the mother’s state of mental health, her apparent inability to cease illicit drug use, and her inconsistent commitment to relationships with the children.
In order to induce reinvigoration of the mother’s commitment to involvement in the children’s lives the orders provide for the children to spend supervised time with her at a venue in Newcastle, which venue is reasonably near to her home.
Given the father and children now live a considerable distance away from Newcastle, the children will not spend time with the mother more frequently than monthly. That frequency is designed to reduce the travel burden to the children, and also the cost burden to the father. It could not be cogently argued the orders provide for too infrequent interaction between the children and mother, principally for two reasons. The mother was disinclined to visit with the children more frequently when that opportunity was available to her under past interim orders, and when she had the opportunity at trial the mother agreed to orders under which the children would spend supervised time with her on a monthly basis.[87]
[87] Exhibit B
The mother’s past non-compliance with interim orders invites concern she will not comply with these orders. If that occurs, the children’s hope of renewed relationships with the mother will be dashed, potentially causing them emotional harm. That eventuality needs to be avoided. The orders therefore provide for self-executing suspension if the mother fails to attend two consecutive visits with the children.
The orders also provide for their suspension if, in the unilateral opinion of the staff at the Contact Centre, the mother attends a visit with the children intoxicated by alcohol or some other substance. The children ought not to be subjected to a drug-addled or drunken parent as a role model. There can be little room for compromise on that score having regard to the family history already discussed.
The staff at the Contact Centre need to be appraised of the orders and so leave is granted to the parties to furnish a copy of the orders to the Contact Centre.
The father proposed an unconditional order that both parties be restrained from being in the presence of the children whilst intoxicated.[88] I decline to make an order in those terms. Even if proof could be adduced of the father’s breach of such an order, consequential removal of the children from his residential care is not presently an option. It would however be contumelious of the father to brazenly disregard the Court’s concern about his intoxication in the presence of the children. Alternatively, if proof could be adduced of the mother’s breach, it would hold no ramification for the children’s continued interaction with her. It is preferable for the mother to know the children will not be permitted to spend time with her if she is intoxicated.
[88] Exhibit F2, Order 7
The Independent Children’s Lawyer proposed an order which enforced the mother’s participation in drug rehabilitation, as previously ordered in September 2010.[89] I decline to make such an order. The mother’s failure to comply with that former order, either diligently or at all, has been taken into account in these reasons. The Court does not have unfettered power to compel parties to undertake treatment. Such an unconditional final order is not an injunctive order under ss 68B or 114 of the Act, nor generally a child welfare order under s 67ZC of the Act, and it is difficult to conceive it as a parenting order under s 64B of the Act (see L v T [1999] FLC 92-875 at [49]-[60]; Jacks & Samson [2008] FLC 93-387 at [200-226]).
[89] Exhibit C
There is no evidence that either party holds employment. Inferentially, they each experience difficult financial circumstances. Since the father will bear the financial burden of travelling to Newcastle with the children each month, it is not unreasonable to expect the mother to share the cost of the supervision of the children with her.
As for the children’s communication with the mother, the evidence proves it has rarely occurred. The orders provide for the mother to telephone the children at a regular time each week in an attempt to formalise that arrangement. Hopefully weekly telephone communication will assist the rejuvenation of the children’s relationships with the mother and be an adjunct to the monthly face-to-face visits.
Since the mother will play a less significant role than the father in the children’s lives for the foreseeable future, the orders require the father to take steps to keep the mother informed of the children’s academic and medical progress. The father indicated his consent to such orders during final submissions.
In order to facilitate implementation of the orders, each party is required to keep the other informed of their respective contact details. The father also consented to an order in those terms during final submissions. That should not of course be interpreted by the father as a licence to contact the mother in breach of the existing family violence order. He is permitted to contact the mother to implement the parenting orders and to agree upon any variation as may be deemed required.
The orders restrain the parties from permitting the children’s exposure to denigration of the parties. Such provision could hardly be the subject of sensible objection.
The father indicated to the Family Consultant his willingness to undertake a post-separation parenting program.[90] An order is made that he do so. Similarly, the order requires the mother to undertake such a program. She will benefit from the education it affords her. Hopefully it will assist the mother to improve her communication with the father and regain the trust of the children. In the event either party fails to undertake such a program, no doubt evidence of the failure will feature in any subsequent litigation concerning parenting arrangements for the children.
[90] Family Report, par 57
For those reasons, I am satisfied the orders reflect the best interests of the children having regard to the prevailing circumstances.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on Thursday, 29 September 2011.

Associate:

Date: 29 September 2011

[2011] FamCA 751

29 September 2011

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