Addison and Gilligan and Ors

[2018] FamCA 130

FAMILY COURT OF AUSTRALIA

ADDISON & GILLIGAN AND ORS [2018] FamCA 130

FAMILY LAW – CHILDREN – With whom a child shall live – Where there are competing applications for the care of the children by the maternal grandmother, the maternal grandmother’s former de-facto partner and the maternal great aunt and uncle – Where the children’s biological mother supports the maternal great aunt and uncle’s application for sole parental responsibility and residence with them for the subject children – Where the maternal great aunt and uncle have parental responsibility for the mother’s three youngest children – Where the maternal great aunt and uncle will facilitate a relationship between the children and the maternal family, including the children’s mother – Ordered the maternal aunt and uncle shall each have parental responsibility for the children, to the exclusion of the mother and father of the children – Ordered the children shall live with the maternal aunt and uncle

FAMILY LAW – CHILD ABUSE – Sexual abuse – Where the grandmother’s former de-facto partner had been imprisoned prior to their relationship for a sexual assault on his former partner – Where the mother and her sister allege the former de-facto partner sexually assaulted them as teenagers – Concluded there is an unacceptable risk of harm to the children of a sexual nature in the former de-facto partner’s household

FAMILY LAW – CHILD ABUSE – Emotional abuse – Where the former de-facto partner has refused to allow the children to contact their maternal family – Where the former de-facto partner has neglected the younger child’s education and mental health – Where the former de-facto partner is a poor role model – Concluded there is an unacceptable risk of harm to the children of an emotional nature in the former de-facto partner’s household

Family Law Act 1975 (Cth), s 60CC

APPLICANT: Ms Addison

FIRST RESPONDENT: Mr Gilligan

SECOND RESPONDENT:	Ms Illingworth
THIRD RESPONDENT:	Mr Jenkins
FOURTH RESPONDENT:	Mr & Ms Williams
INDEPENDENT CHILDREN’S LAWYER:	Foat Roberts Lawyers

FILE NUMBER: NCC 2695 of 2012

DATE DELIVERED: 6 March 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 5 - 9 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Murray

SOLICITOR FOR THE APPLICANT: Intercept Law

COUNSEL FOR THE FIRST RESPONDENT: Mr Mooney

SOLICITOR FOR THE FIRST RESPONDENT: Catalyst Family Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Mr Guyder

SOLICITOR FOR THE SECOND RESPONDENT: Brennan Tipple Partners

COUNSEL FOR THE THIRD RESPONDENT: Not Applicable

SOLICITOR FOR THE THIRD RESPONDENT: Not Applicable

COUNSEL FOR THE FOURTH RESPONDENTS: Not Applicable

THE FOURTH RESPONDENTS: Representing themselves

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

1. That all prior parenting orders made in this Court and in the Federal Circuit Court in relation to B born … 2002 and C born … 2003 (“the children”) are discharged.

2. That Ms Williams and Mr Williams (“the Williams”) shall each have parental responsibility for both of the children to age 18 years, to the exclusion of any other person.

3. That the children shall live with the Williams.

4. That the children shall spend time and communicate with the mother, the maternal grandmother and other maternal relatives by arrangement with the Williams.

5. That the children shall not spend time with and communicate with Mr Gilligan, the former de facto step maternal grandfather of the children, without the express written approval of the Williams or either of them.

6. That the Registrar of this Court provide to the Secretary of the Department of Family and Community Services a copy of these Orders and Reasons for judgment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Addison & Gilligan and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC2695/2012

Ms Addison

Applicant

And

Mr Gilligan

First Respondent

And

Ms Illingworth

Second Respondent

And

Mr Jenkins

Third Respondent

And

Mr and Ms Williams

Fourth Respondents

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications between family members for parenting orders in respect of two adolescent children.

The Children

1. B is a boy just turned 16. He is globally delayed, including intellectually, and is supported in his education in a special unit. He was assessed by the Family Consultant to function at the level of a much younger child.[1]

   [1] Family Report dated 29/06/2017, par 63

2. C is a girl of almost 15 years. C struggles with learning and literacy.

3. Both children are in Year 10, each at a different high school.

The Applicant

1. The maternal grandmother Ms Addison (“Ms Addison”) is the applicant. She raised the subject children, together with her former de-facto partner Mr Gilligan, from infancy until early in 2015.The children call her “Mum”.

The First Respondent

1. Mr Gilligan (“Mr Gilligan”) is the first respondent. The children came to live with Ms Addison and Mr Gilligan as very young infants. The mother relinquished their care.

2. The children have lived with Mr Gilligan for most of their lives and in his sole care since early 2015. The children call him “Dad”.

3. The biological parents are parties to the proceedings.

The Second Respondent

1. The mother Ms Illingworth is the second respondent (“the mother”). The mother participated in the trial and was legally represented. The mother is known to the children. They knew her as “[mother’s first name]” in their lives growing up but did not know she was their mother until recently. The mother has six children. The two subject children, a boy aged 14 who is currently living with her and three younger children who are in the care of the fourth respondents as per orders of the Children’s Court.

The Third Respondent

1. The father Mr Jenkins (“the Father”) was the third respondent. The father chose not to participate in the trial. He has played no role in the children’s lives.

The Fourth Respondents

1. Ms Williams is the maternal great aunt of the children. She is the sister of Ms Addison. Together with her husband, Mr Williams, they are the fourth respondents (“the Williams”). The Williams are known to the children. They have spent very little time together. The Williams have parental responsibility by Court order for the three youngest children of the mother.

History of Relevant Events

1. In or around September 1995 Mr Gilligan was released from prison where he had served two years for a sexual assault on his former partner, the mother of their then infant child Ms D.

2. In 1996 Ms Addison met Mr Gilligan. She was living in Suburb E, a suburb of Sydney. She was living there with the youngest three of her four children then aged between 13 and seven. The eldest of them was the mother in these proceedings, Ms Illingworth. The younger children were Ms F and Mr G.

3. Mr Gilligan moved in with Ms Addison and the three children.

4. Mr Gilligan told Ms Addison that he had been in prison but lied about the offence. He said it was drug related.

5. There were several moves over the following years to different local suburbs.

Mother first leaves home at 16

1. In late 1998 soon after she turned 16 the mother left home.

2. The mother alleges that Mr Gilligan, on her 16th birthday, plied her with alcohol and had sex with her without her consent. Mr Gilligan denies the allegation.

3. Through his counsel Mr Gilligan accused the mother of lying and fabricating.

First relationship for mother

1. In about 2000 the mother met the father and they formed a relationship.

2. In 2002 B, the first subject child was born. The mother was 19 years old.

3. In 2003 C, the second subject child was born.

4. Later that year the mother and father separated. The mother and the two children moved in to live with Ms Addison and Mr Gilligan. The mother described herself as having “nowhere else to go.”

5. The mother alleges that Mr Gilligan would, in the absence of Ms Addison, try to kiss her on the face and mouth, hug her and touch her. He would say, “I’m in love with you”.

6. The mother left the home without the subject children. Ms Addison and Mr Gilligan cared for the children thereafter.

Second relationship for Mother

1. In early 2004 the mother formed a new relationship with Mr H (“Mr H”). Over the following five years they had four children together.

Mother alleges sexual assault

1. In late 2004, after the birth of J, the mother’s first child to Mr H, the mother went to stay with Ms Addison in Suburb K. The mother alleges that Mr Gilligan came into the bedroom where she was sleeping, removed her pyjama pants and had sexual intercourse with her. Without either having spoken he then left.

2. The mother in her oral evidence said “I froze, I couldn’t move.” She said and did nothing at the time and told nobody about the incident for many years.

3. Mr Gilligan denied the allegation and through his counsel accused the mother of lying and fabricating.

Maternal aunt first leaves home aged 17

1. In June 2003 soon after she turned 17, Ms F, the mother’s younger sister, left home remaining away for almost a year.

2. Ms F too alleges that from age 16 Mr Gilligan watched her in the shower from inside the roof, told her he was in love with her and on one occasion spiked her drink.

3. Unlike her older sister Ms F repeatedly complained about Mr Gilligan to her mother who at best failed to act on  her complaints.

4. In her oral evidence Ms Addison revealed hearing Mr Gilligan in the roof after Ms F had called for her assistance in the bathroom. She felt shocked. She was unable to remember Ms F telling her that Mr Gilligan tried to get into bed with her.

5. Ms F was at the home of Ms Addison and Mr Gilligan in Suburb L for her 18^th birthday and had a party. Ms F alleges that Mr Gilligan sexually assaulted her the morning after her party, in her own bed.

6. Mr Gilligan denied all such allegations. Through his counsel he also accused Ms F of recently inventing her complaints to disadvantage him in these proceedings. At that point he was unaware of the historical record in the Department of Family and Community Services’ (“the Department”) files.

7. Ms F came home and left again twice more.

8. She was challenged as to why she would keep returning if the events alleged had occurred.

9. She replied with this:

   When you’ve got nowhere else to go you turn to your family. Whether I liked it or not my mother lived with [Mr Gilligan].

Report to the Department by Ms F

1. In June 2005, aged 19, Ms F made a report to the Department.[2]

   [2] Exhibit 20

2. She reported that Mr Gilligan had sexually assaulted her in June 2004. She also reported that from the time Mr Gilligan moved in with her mother, when Ms F was 10 years old, he would touch her genitals, fondle her and watch her showering from the manhole in the roof of the bathroom.

3. Ms F reported also that Mr Gilligan currently (in 2005) yelled at C (aged two) who was frightened of him and would hide.

4. Ms F stated that Mr Gilligan was a drug dealer who would wake up and smoke marijuana every day.

5. There is no evidence before me of what investigation, if any, was undertaken as a result of Ms F’s notification.

6. The report is inconsistent with recent invention by Ms F. That is not to say that the allegations raised must therefore be true. It does however confirm that Ms F has been complaining to those in authority about her treatment by Mr Gilligan for 12 years.

Move away from Sydney

1. In 2008 Ms Addison and Mr Gilligan separated for a few months. Mr Gilligan moved to taking Ms Addison’s youngest child Mr G, with him. That left Ms Addison alone with the two subject children B and C.

2. Ms Addison then moved with the children to M Town to re-unite with Mr Gilligan and Mr G.

Separation of Ms Addison and Mr Gilligan

1. On 28 September 2012 Ms Addison separated from Mr Gilligan. There was a physical fight and an argument over the removal of a barbecue by Ms F’s partner.

2. It is alleged that Mr Gilligan had a solid quantity of marijuana stored in a bag inside the unit. He denies he had the drug and that anything was returned to him.

3. Mr Gilligan did not consent to the children leaving with Ms Addison who then left the home alone. Ms Addison moved to live close-by with her daughter Ms F and family.

4. Immediately after separation, Ms Addison consulted police about having the children placed in her care. After visiting the home, observing the children, and speaking to Mr Gilligan, police returned to Ms Addison. They advised her that the children were safe and that her course should be to apply to a court for parenting orders.

5. There had never been parenting orders in place. Arrangements for care of the subject children were informal.

6. On 4 October 2012, within a week of separation, Ms Addison made an application to the Federal Circuit Court.

7. Quite properly where parties other than parents were proposed to have parental responsibility, all parties were directed to attend interviews for a Limited Issues Family Report.

8. The recommendations of the Family Consultant in the Limited Issues Report were:[3]

   Support for the agreement that the children live with [Mr Gilligan] and spend lots of time with [Ms Addison] in a flexible arrangement until she obtained accommodation suitable for overnight stays after which substantial and significant time should commence.

   That the children be given a full frank disclosure of their family background.

   That consideration be given to the children establishing relationships with their biological parents as well as their siblings.[4]

   That the biological parents receive school reports and regular photos to maintain some involvement in the lives of the children.

   [3] Limited Issues Report dated 23/01/2013 

   [4] By then the mother had four more children and the father three more children.

9. On 1 July 2013 final orders were made by consent (“the 2013 Orders”). The orders provided for Ms Addison and Mr Gilligan to have equal shared parental responsibility and that the children live with Mr Gilligan. The four notations to the orders encapsulate the situation of Ms Addison at the time and the hopes for the future in terms of herself and the children which did not materialise:

   A.The applicant maternal grandmother [Ms Addison] currently spends time with the children on a daily basis and it is proposed this continue.

   B.The applicant maternal grandmother [Ms Addison] is currently living in accommodation where she is unable to have the children on an overnight basis.

   C.In the event the applicant maternal grandmother [Ms Addison] obtains her own accommodation the parties will consider the children spending overnight time with the applicant maternal grandmother [Ms Addison].

   D.The applicant maternal grandmother [Ms Addison] would like the children to return to live with her once she finds her own accommodation.

10. Ms Addison saw the children almost every day, usually in the home of Mr Gilligan, for about 18 months. She continued to live in the home of her daughter Ms F and her partner (who by then had five children aged under six years). Ms Addison must have provided a great deal of practical help with the subject children, given Mr Gilligan’s reaction when this phase ceased.

11. In January 2015 Ms Addison met a new partner online. She moved to N Town to live with him and remained there for about a year.

12. Mr Gilligan was then, and still is now, very distressed by the departure of Ms Addison from his life. Over time distress turned to anger and bitterness.

13. Mr Gilligan struggled as a sole parent without Ms Addison. He appropriately contacted various agencies and asked for help. He was referred to O Community Centre for counselling and to Centrelink and the P Group for support.

14. During her time in N Town Ms Addison travelled by train every two to four weeks to see the children.

15. On 25 May 2015 an order was made in the Children’s Court in Q Town placing the mother’s three youngest children with the Williams until age 18. This was a confirmation of an existing placement.

16. The mother and her current partner Mr R moved to N Town after Ms Addison moved. The mother’s child J moved with them.

17. Ms Addison’s youngest son Mr G moved out of Mr Gilligan’s home after a disagreement. Mr G was by then about 27 and had lived with Mr Gilligan for nearly 20 years.

18. In December 2015 the extended maternal family got together for Christmas and exchanged historical information and discussed the position of the subject children. Mr Gilligan made distressed telephone calls to maternal family members.

19. In January 2016 the mother went to police and made a statement about the alleged sexual assault on her by Mr Gilligan which she has raised in these proceedings.

20. Soon after Ms F also made a statement to police alleging sexual assault on her by Mr Gilligan.

21. All these events probably contributed to Mr Gilligan feeling as embattled and embittered about the maternal family as he presented to be in Court. The subject children have accepted that their maternal family “weren’t there for them” because that is Mr Gilligan’s often stated belief.

22. In March 2016 when Ms Addison returned to live in Region EE the mother and her partner did likewise.

23. From May 2016, after an argument, Mr Gilligan no longer permitted Ms Addison to see the children. He was angry and disappointed with Ms Addison. I am satisfied that he used withdrawal of visiting privileges to punish Ms Addison. That his actions were punitive for the children, who understood Ms Addison to be their mother, did not seem to occur to him.

A second application

1. On 16 November 2016 Ms Addison filed a fresh Application in the Federal Circuit Court for sole parental responsibility and residence for the children with her. Ms Addison also filed a Notice of Risk.

2. Mr Gilligan responded with orders for continuation of equal shared parental responsibility and regular time for Ms Addison.

3. Probably on the basis of the risk factors raised about Mr Gilligan in the Notice of Risk such as historical sexual assaults and misuse of illicit drugs and alcohol, the applications were transferred to this Court.

Children and Parents Issues Assessment

1. On 2 March 2017 Ms Addison, Mr Gilligan the subject children and the two parents attended for interviews with the Family Consultant for a Children and Parents Issues Assessment (“CAPIA”).

2. The Family Consultant identified a number of risks to the children including the following:

   [Mr Gilligan’s] historical conviction for sexual assault and for anti-social behaviour and substance abuse issues

   Alleged sexual misconduct by [Mr Gilligan] to the mother and her sister when they were adolescents in his household. Current police investigations ongoing.

   [Ms Addison] was forthcoming with many concerns and complaints about [Mr Gilligan] which she had not previously raised although she had known of those matters when 2013 consent orders were made.

   [Ms Addison] was living with a man who had assaulted her, her current partner [Mr S].

3. The Family Consultant noted that both Mr Gilligan and Ms Addison had in previous interviews in 2013 concealed criminal convictions and drunken misconduct by Mr Gilligan.

4. When confronted with criminal records Mr Gilligan became “defensive, tearful and verbally aggressive towards the Family Consultant”.[5]

   [5] CAPIA dated 2/03/2017, par 36

5. The Family Consultant strongly suggested that C have counselling with a clinical psychologist who had been provided with the CAPIA in order to “better understand her current situation” and that protective behaviours training be incorporated into the counselling sessions.

1. It was very clear that in the face of accusations by the mother and her sister of Mr Gilligan’s behaviour to them as teenagers, together with drug and alcohol abuse by Mr Gilligan, the Family Consultant identified risk for C of being mistreated.

2. That recommendation for protective counselling was not followed by Mr Gilligan, a matter which I take into account in assessing the risk for C in the care of Mr Gilligan.

3. A Family Report was recommended.

C’s party - 10 March 2017

1. In early 2017 there was a party for C’s 14^th birthday arranged at Ms Addison’s home during a period of time both subject children were with her. This brought the mother’s six children together as a group, which meant that the subject children met their four younger siblings for the first time. Quite naturally it was an exciting and interesting meeting for all the siblings. The Williams were present; they had brought the three youngest ones along.

2. Mr Gilligan wrongly assumed that people he objected to were present in the house. He stood outside the home and yelled for the children to come outside.[6] He conceded in oral evidence that it had been an over-reaction. Police were called. Mr Gilligan later accused Ms Williams of assaulting C by physically pushing C so she could not comply with Mr Gilligan’s command. I am quite satisfied that she did not do so, rather she reassured the child that she need not leave the house.

   [6] Exhibit 11

3. The ultimate outcome, after a hearing at T Town Local Court, was an Apprehended Personal Violence Order (“APVO”) for the protection of Mr Williams from Mr Gilligan which remains current until September 2018.

The Family Report July 2017

1. On 27 June 2017 interviews for a Family Report were undertaken. The Family Consultant confirmed her earlier assessment[7] that effectively there was no safe place for the children within the extended family. She strongly recommended intervention by the Department. I infer that the view of the Family Consultant was that foster care in the community might be the best and only safe option.

   [7] CAPIA dated 2/03/2017

2. On 4 July 2017 the Family Report was released.

Mother proposes Departmental care

1. On 25 August 2017 the mother filed her Response proposing that the Department have parental responsibility for the children who should live as directed.

2. The mother proposed that the children spend one day per week with her.

3. On 28 August 2017 the Court invited the Department to intervene.

4. At that point the Williams’s indicated their wish to be joined as parties to the proceedings. The application was filed. It was opposed by Mr Gilligan.

Williams’s joined as parties

1. On 29 September 2017 the Williams were joined as parties to the proceedings.

2. On 13 October 2017 the Williams filed an application seeking orders for sole parental responsibility for the subject children and residence with them.

3. On the same day the mother filed an Amended Response supporting the application of the Williams.

4. On 10 November 2017 the matter was set down for trial for five days in February 2018.

5. On 25 January 2018 Mr Gilligan filed an Amended Response proposing that the children continue to live with him, that he have sole parental responsibility and that all parties be restrained from bringing the children into contact with the mother, the father, the Williams and Ms Addison’s partner.

6. There could have been no clearer indication of the antipathy felt by Mr Gilligan to all members, other than Ms Addison, of the children’ s extended family. Even for Ms Addison, Mr Gilligan’s proposal was that the children themselves could directly arrange to see her.

7. Mr Gilligan himself wanted nothing to do with any of the maternal family. It seems that the family reunion at C’s birthday had been the last, unforgiveable, straw for Mr Gilligan.

Evidence –

Documents

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

   The Applicant – Ms Addison (maternal grandmother)

   (a)Initiating Application filed 16/11/2016;

   (b)Affidavit of Ms Addison filed 31/01/2018;

   The First Respondent – Mr Gilligan (Maternal Step Grandfather)

   (c)Response filed 18/01/2017 varied by “My proposal Para 102 in Affidavit”.

   (d)Affidavit of Mr Gilligan filed 25/01/2018;

   The Second Respondent – Ms Illingworth (Mother)

   (e )Amended Response to Initiating Application filed 13/10/2017;

   (f)Affidavit of Ms Illingworth filed 25/01/2018;

   (g)Affidavit Ms F filed 25/01/2018;

   The Fourth Respondents – Mr Williams and Ms Williams (maternal Great Aunt and Uncle)

   (h)Amended Response to Initiating Application filed 13/10/2017;

   (i)Affidavit of Ms Williams filed 25/01/2018;

   (j)Affidavit of Mr Williams filed 25/01/2018;

   Reports

   (k)Family Report dated 29/06/2017;

   (l)Children and Parents Issues Assessment dated 2/03/2017 (annexing Limited Issues Family Report dated 23/01/2013).

Written and Oral Evidence

Ms Addison – The Maternal Grandmother

1. Ms Addison is aged 54 and is not in paid employment. She receives a disability support payment of $800 per fortnight.

2. Ms Addison currently lives in rented accommodation, a two bedroom apartment in M Town.

3. Ms Addison has four adult children of whom the mother is the eldest.

4. The mother is the only child of the relationship between Ms Addison and her partner Mr Illingworth. Ms Addison was 19 when the mother was born in 1982. Mr Illingworth died when the mother was two years old or less.

5. In about 1984 Ms Addison formed a relationship with Mr U. He became the mother’s first step-father and the father of Ms Addison’s three other adult children, Mr V, Ms F and Mr G, now in their early thirties. Ms F is a witness in the mother’s case.

6. Mr U apparently drank alcohol to excess, used drugs and was violent towards Ms Addison. That relationship ended probably after about ten years.

7. Ms Addison, together with her children, then lived in a de-facto relationship with Mr Gilligan between about 1996 and September 2012.That relationship had the same violent drug and alcohol affected character.

8. The current household of Ms Addison consists of herself and her current partner of two years, Mr S.

9. Mr S is aged 39 and receives a disability payment. He has problems with cognition.

10. Mr S was charged and held in custody for three months prior to being convicted of an assault on Ms Addison arising from an incident in 2016. The incident was a violent assault on Ms Addison by Mr S when he was intoxicated. He was sentenced to the time already served.

11. There has been no further recorded incident of domestic violence in the twelve months since this sequence of events.

12. Ms Addison gave evidence that Mr S had promised her that he would not behave that way towards her again. Further that he has stopped drinking. Ms Addison accepted that promise and the relationship is continuing.

13. There was no affidavit from Mr S and accordingly no opportunity to assess him.

14. Mr S did not participate in interviews for the Family Report.

15. On the fourth day of trial Ms Addison was recalled to the witness box. The further evidence she gave was to the effect that she would tell her partner Mr S that if the children came to live with her he would have to move out of their home. She had not yet done so. Further that if the children came to live with her, each child would have a separate bedroom and she, Ms Addison, would sleep in the lounge room.

16. If living with Ms Addison the children would continue at their current high schools.

17. Ms Addison is hopeful that the children will each complete Year 12. However she willingly conceded that Mr Gilligan had done well to organise part-time work for B. She stated that if he was offered a full-time position in his current employment she would look into it.

18. Ms Addison impressed as a generally honest witness. She was easily flustered and presented as passive and slightly fearful in response to most questions. She was reactive to tone of voice.

19. I formed the impression that nothing means more to Ms Addison than her children and grandchildren.

20. However her experience of life has caused her to avoid conflict and to ignore rather than confront difficult matters. She has accepted violence as a fact of life. As a result she has not usually been protective of children and grandchildren in her households.

21. On the occasion she did confront the behaviour of Mr Gilligan in 2012, she physically attacked him, was arrested and made subject to an Apprehended Violence Order (“AVO”).

22. That Mr Gilligan was not fearful of her is evidenced by his willingness to allow her to come to the house each morning thereafter to prepare the children for school.

23. I consider that Ms Addison has not been able to find a way to assert the parental authority afforded to her by the 2013 orders. She tried to obtain school reports for the children but seemed to accept being repeatedly dismissed on the topic.

24. She settled for whatever time with the children Mr Gilligan would allow.

25. Ms Addison did not attend school concerts, parent/teacher nights and sporting events. The likely reason is that she lacked the confidence to do so without Mr Gilligan’s invitation or permission. She feared the consequences of boldly asserting legal rights.

26. In relation to allegations of sexual abuse, Ms Addison has not acted protectively.

27. When her daughter Ms F complained when she was in her teens about Mr Gilligan’s behaviour towards her, Ms Addison was unresponsive.

28. Ms Addison was taken to the fact of Mr Gilligan’s conviction and incarceration for two years for a sexual assault prior to her meeting him. If I accept her evidence about that Mr Gilligan told her he had been in gaol but lied to her about the reason why, telling her he had gone to gaol for drug related crime. Six months later she found court documents revealing the truth of the crime committed. Ms Addison did not confront Mr Gilligan and told no-one. She kept the knowledge to herself. She lived with it.

29. This frozen, passive aspect to her behaviour is responsible for her failure to be protective.

30. Confronted by her two daughters’ statements during these proceedings, Ms Addison has looked back with bitter regret.

31. She had not read their affidavits although was generally aware of what the contents would be. I do not consider that this was oversight or coincidence. Ms Addison has felt helpless to change the course of events for so long that it has become normal.

32. In her affidavit Ms Addison  said this:[8]

    44.The current orders were made after discussions with lawyers and after a report by a Family Consultant was made and in a subsequent report I have been criticised for not alerting the report writer and the Court to [Mr Gilligan’s] problem with alcohol and drugs. I am not sure why I was silent on those matters.

    45.I remember having a discussion with my then lawyer who represented me then, but my concerns from memory were brushed aside by her. Looking back now with the benefit of hindsight I would say that because “it”’ happened so often and for so long, “it” being the abuse of alcohol and drugs by [Mr Gilligan] and his abuse of me and the children, I didn’t really regard it as out of the ordinary, I just thought it was part of the norm and I accepted it as being normal and it is only now with the benefit of hindsight and with me having been away from that relationship for a long time, that I can now see that it was not normal and it was not a good idea to leave the children living with [Mr Gilligan] when he was still misusing alcohol and drugs.

    [8] Mother’s affidavit dated 31/01/2018, pars 44 & 45

33. This reflection by Ms Addison on what was normal for her, highlights the need for the subject children not to accept as normal heavy drinking, using marijuana, being verbally aggressive  and disrespectful of others’ rights.

34. Ms Addison was not protective because she became tolerant and accepting of aggressive and frightening events as part of life at home.

35. That is not to say that she does not love the subject children. She does. She lacked the skills and self-confidence to speak up, stand her ground and be protective of her children and grandchildren. By saying that I do not under-estimate the risk to safety involved in taking such a position.

First Respondent – Mr Gilligan

1. Mr Gilligan is aged 50. He receives a disability pension for a chronic bowel condition. He has also been diagnosed with Hepatitis C. The evidence strongly suggests that he has regularly drunk alcohol to the point of intoxication throughout his adult life. Mr Gilligan stated that he has now cut down to a carton of stubbies of beer per week. Mr Gilligan has also been a regular user, often daily, of cannabis. He was not asked about a work history but Mr Gilligan has not been in paid employment since the relationship between himself and Ms Addison began in the mid-1990s.

2. There is no biological relationship between Mr Gilligan and the subject children. The children have known him as their father for most of their lives. They call him “Dad”. They came into his care in 2003. At that time their mother was struggling in her relationship and with their care. The maternal grandmother, Ms Addison, was in hospital on and off, being treated for burns from a radiator causing her skirt to catch on fire. The mother and children moved in around that time to the household of Mr Gilligan and Ms Addison.

3. When the 2013 Orders were made by consent, the prohibition on use of alcohol and drugs by Mr Gilligan in those orders represents a clear indicator of the knowledge of all parties that he had a propensity to drink to excess and to use illicit drugs.

4. He has now had the children in his sole care for three years. His household consists of himself and the children. Each child has a bedroom. There is no evidence of a new relationship for Mr Gilligan.

5. Throughout the course of his cross-examination Mr Gilligan presented as impulsively angry, asking rhetorical questions of counsel and becoming defensive when challenged.

6. He produced a document from ‘W Group’, an organisation that provides assistance to B in implementing his NDIS plan. There have been fortnightly meetings by an officer from W Group with B and Mr Gilligan. There is also a reference in that document to the after school program, which B attends three days per week. B has been attending the program for three years.

7. A report for semesters 1 and 2 of 2017 for B was also tendered into evidence. His reports in all subjects are positive in terms of his eagerness and willingness to participate. He is described as a diligent and hard-working student in the subject of PDHPE.

8. The position with C is not so positive.

9. Mr Gilligan can read but it takes a long time. Unsurprisingly, he avoids reading long and complex documents. His view was that C had been “going really well” at school. However, her school reports tendered into evidence do not support that assertion.[9]  Her achievement in all subjects, other than Food Technology, was described as “basic”, and in terms of completing class work and homework, varied between “rarely” and “usually” at best, never achieving “always”.

   [9] Exhibit 5

10. C had a high absence rate, part of which is explained by suspensions. The suspensions were for being caught in company of students possessing and smoking marijuana. Mr Gilligan was defensive on this topic. He said, “Most of the time she has been caught was due to the stress of these proceedings”. He was also insistent that she herself had never been caught smoking and was the only child “sitting there not stoned”. However, there were three suspensions, the last of which was on the last day of Term 4 in 2017. The first two suspensions were earlier in that year. The evidence of Mr Gilligan, if I accept it, is that he had directed C not to keep company with the girls involved in the possession of marijuana. On the third occasion she was found in the company of those same girls so had clearly not complied with Mr Gilligan’s direction.

11. Unlike arrangements that have been put into place for B to have part-time work, with the possibility of full-time employment, there is no reference to any plan for C. Neither completion of Year 12, nor of part-time or possible full-time employment. Mr Gilligan described her as social and liking to hang round with her friends. The evidence suggests that there has not been much more than that for her to do.

Criminal and anti-social behaviour of Mr Gilligan

1. In terms of his own conduct, Mr Gilligan conceded, because there was no other option faced with material produced from subpoenae, that he had been involved in some grossly anti-social conduct over a long period of years.

2. In relation to his conviction in the District Court for sexual assault without consent, Mr Gilligan agreed that he had accepted a lesser offence. He appealed the sentence and conviction unsuccessfully. The victim of the assault was his former partner, the mother of their child.

3. He asserted that there had in fact been consent by the victim but that he had been told that by accepting the lesser offence he would be able to go on seeing his child.

4. There was no evidence from the victim. I therefore rely on the documents tendered as to the nature of the offence and the fact of two years of imprisonment.

5. In June 2001 he was apprehended and given a Notice for swearing and making racial slurs to police whilst intoxicated on a train.

6. In January 2004 he was detected on a train by a drug dog with six small freezer bags containing cannabis heads. Mr Gilligan denied dealing but conceded the drugs were all his.

7. There was a concession by Mr Gilligan that he had repeatedly driven a car whilst unlicensed and in 2009 had driven the car intoxicated with the children in it.

8. In September 2011 at 7.30 am, straight after returning from attendance at a nightclub in Sydney, Mr Gilligan took the child B to the park. Mr Gilligan was still heavily affected by alcohol from drinking on the previous night. He had a confrontation with an older man walking his dog in the park. B, then aged about nine years old was riding his bike. Ms Addison was still a member of the household at that time and was presumably at home with C.

9. Police were called.

10. On the following morning, Mr Gilligan attended the police station at 3.30 am so intoxicated that the police turned him away, directing him to return when he was sufficiently sober to make a complaint.

11. As Mr Gilligan reacted to various statements being read out from material produced in response to subpoena, some of the anger which was referred to in those documents emerged in the witness box.

12. In 2011 intoxicated in the inner city area of Sydney, police were called to Mr Gilligan trying to hug passers-by. This appeared to be more than the disinhibition of intoxication. I had the impression that Mr Gilligan thought that he was doing something good for others. He asserted, “Half the people enjoyed it, half didn’t”. He did not seem to entertain the idea that people approached in that way may have been attempting to placate and avoid his drunken intrusion into their privacy.

13. In July 2014 Mr Gilligan attended a police station to complain about being injured (graze on forehead) at a hotel.[10] He was too intoxicated for the complaint to be taken. Subsequent police enquiries revealed he had been evicted from the hotel for intoxication and behaviour.

    [10] Exhibit 21

14. Mr Gilligan was taken to the allegations made by the mother and her sister about his conduct when they were mid-aged teenagers. He was angrily dismissive of their allegations, denying that he had watched Ms F in the shower from the roof cavity. He likewise denied the assertion that C had been sleeping in his bed. “She has never slept in my bed. She has come into my bed when she was frightened for a couple of hours and then gone back.” 

15. I had the impression that Mr Gilligan felt that he was the victim in these proceedings. He agreed that this round of litigation was stressing him, “I am just going off my head out the back saying, ‘Why have I got to go through this again?  It’s been five and a half years.’” 

16. It is certainly the case that Mr Gilligan has been the consistent presence in a parental role in the lives of the subject children since 2003.

1. He conceded anger with Ms Addison for leaving the relationship with him and moving away to N Town.

2. He regards the maternal family in its entirety as having both abandoned the subject children and of intruding into his life with them. If he has reflected on the long-term consequences of his application to restrain all members of the maternal family, other than Ms Addison, from the lives of the children, there was no evidence of it in his affidavit or his oral evidence.

3. At one point, Mr Gilligan said he had asked the children “a couple of times if they wanted to see their mother and they said no”. He denied that that could be his attitude affecting them, “No, I don’t think so. They know she has never been there for them because she has never been there.”  This statement was made in a tone of considerable anger and self-righteousness.

4. Likewise, Mr Gilligan denied that the habit of both children to yell when they lost their temper and, in B’s case, to throw things could have come from modelling him. Interestingly, he said that when B lost his temper he would sit down and talk to him but simply referred to C as “yells like a typical 14 year old girl.”

5. Mr Gilligan did concede that he had had 25 years of drinking to excess and diverted the question about whether he considered himself to have a problem with alcohol by stating he had been to a counsellor. The proposition was put that heavy drinking by a parent was a risk for children. His answer, “Yes it is but in this case it is not” was an example of Mr Gilligan’s readiness to excuse his own conduct.

6. In relation to his only biological child, Ms D, Mr Gilligan asserted that he had regular contact with her between ages five to 18 years. Ms D would now be about 27 years. He later said that once the subject children came into his care, that is, in 2002, Ms D no longer came to the house. There was no explanation as to why. Further, there was no evidence from Ms D or her mother, the victim of the 1991 assault, nor Mr G, Ms Addison’s son who lived with both parties and with Mr Gilligan alone until recently.

7. There was an arrogance to Mr Gilligan’s responses. He denied reading the Family Report. He said that he had read the CAPIA in part. He has some difficulty with reading but can read. Given his detailed responses and criticisms of the Family Consultant, I consider the explanation is that Mr Gilligan, having decided that the Family Consultant was “against him from the start”, was not interested to read what she had to say. Mr Gilligan repeatedly said that if the children wanted to see their mother, the Williams, their younger sisters (in the Williams’ care) or others he would allow it. However, it became clear that he did not believe that the children did now or would in the future want to see them.

8. In relation to the allegation of the mother that Mr Gilligan had had sex with her without consent on the occasion of her 16^th birthday, there was a blanket denial. Mr Gilligan agreed that he did have a brother who lived in Suburb X but denied that he had taken the mother to that brother’s home on the occasion. He denied giving her red wine to drink and denied sexually assaulting her. Having heard the evidence of the mother, I conclude that there is, on balance, a possibility that there was sexual intercourse between Mr Gilligan and the mother at around the time when she was 16 but I am unable to come to a conclusion about consent.

9. Both the mother and Ms F referred to Mr Gilligan having said to them on many occasions over the years that he was in love with them. Ms F was at pains to explain that he did not say that he loved them in a fatherly way but that he was ‘in love with them’ in a “romantic” way. It is likely, given the mother’s developmental delay and the sheltered life she had led at that time that she had believed such statements by Mr Gilligan. I am supported in this conclusion by the fact that she had not told her mother of the 16^th birthday celebration in advance of it and did not know where her mother was at that time. If the event did take place, both the mother and Mr Gilligan kept this secret from Ms Addison.

10. In relation to Mr Gilligan watching Ms F in the shower, I note that a plan was hand-drawn by him of the house where the parties lived at the time of Ms F’s 18^th birthday. The plan drawn by him omitted the relevant bathroom. When Ms F was in the witness box she noticed the omission, identified it and drew where the bathroom was between two bedrooms.[11]   

    [11] Exhibit 12

11. Ms Addison acknowledged that she had heard Mr Gilligan in the roof at the time when her daughter complained. On balance, it probably did happen that Mr Gilligan furtively watched at least Ms F in the shower.

12. On the second day of trial Mr Gilligan rang C at school. He telephoned her at lunchtime. C then rang the Independent Children’s Lawyer (“ICL”) crying. Mr Gilligan agreed that he had rung and that the child “was very upset about the Court and what was going on”. Interestingly, Mr Gilligan said that C was obliged on that day to leave school by midday to collect her brother and that he was ringing to remind her. It was said in a way that suggested it was nothing unusual for C to have that obligation and may be a partial explanation for why she has often missed school.

13. Mr Gilligan was challenged about his conduct immediately after separation of himself and Ms Addison in October 2012. Mr U, (Ms Addison’s previous partner), and his brother had come to the home, they asked to see the subject children, and Mr Gilligan told them to leave. On his own evidence, the children both knew Mr U and perhaps his brother. There was no apparent reason why they could not have seen the children in this very early stage of separation. Mr Gilligan’s explanation was as follows, “I know why they done it, to piss me off”. He was both deeply flushed and smirking as he made that statement.

14. Had Mr Gilligan considered the interests of the children, the anger that developed between the three men could have been entirely avoided.

15. On Christmas Eve in 2015 the mother and her family assert that Mr Gilligan made numerous abusive calls to family members. Mr Gilligan did not deny this outright. His response was, “I didn’t have their numbers”. He denied asserting that he was “drunk on drugs, fucked up” rejecting that proposition as a flagrant lie. He did however concede that he had complained bitterly that he had been left to look after the children with no support. Mr Gilligan was undoubtedly very distressed when his relationship with Ms Addison ended with her departure from the house. That he would have turned to drinking and use of drugs is consistent with his conduct throughout his adult life. It is likely that he made the telephone calls as alleged.

16. Mr Gilligan asserted that if he was unsuccessful in his application for sole parental responsibility and residence with the children, they would come back to him in any event from wherever they were, be it with their mother, with Ms Addison or with the Williams.

17. When asked whether he would ensure their return he asserted that his children came first and he would ensure their safety.  However, he also conceded, “there is a bit of vengeance since she (Ms Illingworth, the mother) made allegations”. I am not satisfied that given his views and underlying feelings of vengefulness, Mr Gilligan would scrupulously ensure that the children returned to a new home if there was one. It is more likely that his ambiguous response referred to keeping them safe with himself.

18. Mr Gilligan was taken through drug testing that he did not comply with in a prompt and reliable manner. He took 10 days to do one of the requested tests, the CDT testing four months later than the request, and then refused the last request on the basis that it had come too soon after the previous one.

19. Mr Gilligan’s fall-back position in the event the children did not continue living with him was that they would live with Ms Addison. I am quite satisfied that Mr Gilligan believes, with some justification, that if the children were living with Ms Addison they would promptly return to him at his direction.

Second Respondent – Ms Illingworth

1. The mother is aged 35 years. She has had six children, one of whom presently lives with her. That is her 14 year old son J, the eldest of the children from her relationship with Mr H.

2. The mother left home when she was about 16 or 17 years. It is her allegation that in or around ­mid-November 1998, Mr Gilligan plied her with alcohol during a birthday celebration for herself and Mr Gilligan alone. She said she woke to find “I was sore in my genital area. It hurt to urinate and I had two matching bruises down between my inner thighs”.[12] The mother said she was directed by Mr Gilligan to tell no-one. She said she told no one until about 15 years later when she told her sister Ms F. When she had that conversation, in 2013, the mother asserts, and her sister confirms, that the conversation was to the effect that the mother said she had left home because Mr Gilligan “did things” to her and that her sister replied, “look he tried to do the same thing on me”.[13] The mother asserts that after B was born in 2002 Mr Gilligan would come onto the phone when she rang to speak to her mother and tell her he loved her and also, “let’s run away with B and be a family”.

   [12] Mother’s Affidavit filed 25/01/2018, par 49

   [13] Mother’s Affidavit filed 25/01/2018, par 62

3. In 2003, after the second subject child C was born, the mother separated from her partner, the children’s father Mr Jenkins. She moved to stay with her mother and Mr Gilligan out of financial necessity and dependence on her mother for help. The mother alleges that while she was there Mr Gilligan would at any opportunity kiss, hug and touch her and profess his love for her.

4. Early in 2004, the mother formed a new relationship with Mr H. The first child of that relationship, J, was born later that year. The mother visited the maternal grandparents and her own children. She had temporarily separated from Mr H at that time but probably did not say so. She alleges that Mr Gilligan entered her bedroom that night, removed her pyjama pants and had sexual intercourse with her. The mother described herself as not consenting, silent and frozen.[14] The next day the mother left the home of the maternal grandparents. She said nothing to her mother other than, “Mr H] needs me home. I have to go”. This was untrue, as she had separated from Mr H. She then stayed with friends. Her actions are consistent with the mother feeling unable to remain in the household of her mother and Mr Gilligan.

   [14] Mother’s Affidavit filed 25/01/2018, par 60

5. The mother said that she began to realise that “events with [Mr Gilligan]” were having an impact on her. She attended a doctor, was diagnosed with depression, medicated and counselled.

6. In about 2015, the mother told Ms Addison about the events of 1998, which had prompted her to leave home, and the event in 2004 after J was born. If the allegations of the mother are true and the depression she suffered from 2003 onwards is consequential to any extent, she has suffered a tragic loss of the opportunity to care for and raise her own children.

7. The mother lives with her current partner Mr R. Her address is undisclosed but she probably lives in Region EE of New South Wales. Her son J is a member of the household. She is hopeful of developing a good relationship with the subject children, as she has with her son J and as she is doing with the three younger children in the care of her uncle and aunt (the Williams).

8. The mother bore a striking physical similarity to her mother, Ms Addison. She also shared her apparent lack of confidence and passivity. She described herself as afraid of Mr Gilligan and of always feeling uncomfortable in the household of her mother and Mr Gilligan. Her evidence was that Mr Gilligan would come and lie down with her in bed, would try to cuddle her and kiss her on the mouth. She said she did not tell her mother, “No, I was scared”. There is a real possibility, however, that the mother was persuaded as a young girl, that Mr Gilligan was romantically interested in her.

9. I am inclined to accept that there was a “birthday party celebration” in 1998 for the mother’s 16^th birthday. The passage of evidence is a revelation not so much of what actually occurred but of the mother’s inability to assert herself and the uncertainty of her own account.

   Q:What did you say at the [Suburb X] house?

   A:I didn’t say anything.

   Q:Why not?

   A:I just didn’t.

   Q:Did you ask where his brother was?

   A:No.

   Q:Did you ask anything?

   A: No.

   Q:Why not?

   A:I just didn’t.

   Q:What do you say you drank?

   A:Wine.

   Q:How many bottles?

   A:Just the one.

   Q:Did you finish a whole bottle?

   A:I think so.

   Q:Was something done to the drink?

   A:I don’t know.

   Q:Did you discuss it with anyone?

   A:No, I kept it to myself.

   Q:When you woke up the next morning who was there?

   A:Just [Mr Gilligan] in the kitchen. There was no one else there.

10. The mother said she woke without her clothes, uncertain what had happened. In retrospect, after she had developed her own adult relationships, she understood better.

11. The evidence does not support a finding of the mother having been raped by Mr Gilligan as alleged. However, I am reasonably confident that there was consensual sexual intercourse based on the mother’s misconception about Mr Gilligan’s feelings for her. If that is the case, it was certainly a callous exercise.

12. The mother has achieved a certain stability now and is content in her current relationship. She is able to see her children on a monthly basis in the care of her aunt and uncle (The Williams) in whom she has complete confidence. She described them as “good people who will care for them well”. Just as her son B and her younger daughter Y are developmentally delayed, so is the mother. Not much has been done for her during her life but she has worked very hard, in this case, to try to achieve something better for her two eldest children.

Ms F –The maternal Aunt

1. Ms F was cross-examined thoroughly and sternly on the premise that she was a liar. I do not consider that she was.

2. Ms F told a story similar to that told by her sister [the mother] about the conduct of Mr Gilligan towards her from age 16. Her manner of telling it was quite different. She was forthright, articulate and confident.

3. For instance when shown a plan, sketched by Mr Gilligan [of the home where she asserted that Mr Gilligan watched her in the shower through the ceiling manhole] she was quick to point out that the bathroom had been omitted from the plan. She drew it in. The evidence was clarified by that change.

4. I accept that she saw Mr Gilligan in the ceiling when she was showering, that she called her mother [Ms Addison], who remained in the bathroom with her while she finished rinsing her hair, having dressed herself, over the bath.

5. In 2013 the mother confided in her sister that Mr Gilligan had said to her after the birth of her first child B, “I’m in love with you. Let’s run away with B”.

6. Ms F let her sister know that Mr Gilligan had said the same thing to her.

7. It was the beginning of the two sisters discussing their experiences with Mr Gilligan. They did so over the following months and years.

8. I note that whilst Ms F was giving this evidence Mr Gilligan was flushed and smiling. On each occasion that Ms F spoke about him Mr Gilligan reacted in the same way.

9. When Ms F was answering questions about her report of concerns for the safety of the subject children in November 2005 she was at first challenged with never having made such a report. Later when the unexpurgated report was tendered into evidence[15] the proposition was withdrawn.

   [15] Exhibit 20

10. The report was a detailed one not only about her own historically abusive treatment but about her current concerns (based on what an unnamed family friend told her); C being yelled and screamed at by Mr Gilligan, the child hiding in fear and the exposure of both children to Mr Gilligan’s heavy drug use.

11. For the proposition that she was lying about a report to be put it must be the case that Mr Gilligan was unaware of it at the time or since. I infer that no step was taken at that time to investigate.

12. In November 2015 Ms F again made a report to the Department as did the mother. However there were current orders of this Court in place [the 2013 Orders] by consent of the maternal grandmother, the mother and the father for the children to be live with Mr Gilligan. The complaint was assessed in that context.

13. Ms F had applied for an AVO but pulled out, I infer, when it became clear to her that there would be no action by authorities. At that point Mr Gilligan appeared to be on the verge of laughter, was smirking, not just smiling.

14. I consider that Ms F showed courage in giving evidence in these proceedings, as she did when she complained about Mr Gilligan as a girl to her mother, to Police in 2015 and to the Department in 2005 and 2015.

Fourth Respondents –The Williams

1. Mr Williams was an impressive witness in two ways. First, in the considered, thoughtful and accurate answers he gave to questions in cross-examination. Second, through the revelation of his willingness to commit himself to the care of children. There has been, his own three now adult children, his late brother’s child [now almost five] and the three youngest children of the mother in these proceedings. It is not overstated to say that he has, together with his wife, devoted himself to all the children of his broadly defined extended family.

2. There is currently an AVO in place for the protection of Mr Williams from Mr Gilligan. For that reason, he did not place his address on the record, although he did provide it to the Court.

3. Mr Williams is aged 52. He has been married to his wife for 25 years. Ms Williams is the younger sister of Ms Addison. The household of the Williams consists of:

   a)Themselves;

   b)Their older son Mr Z (aged 30). He is suffering from complications of Type 1 Diabetes and is awaiting surgery [organ transplant];

   c)The three younger children of the mother, Y (aged 10) and twin girls AA and BB (aged nine); and

   d)The adopted nephew of Mr Williams, CC, who is almost five and started kindergarten this year. He is the child of Mr Williams’s brother who died soon after the child’s birth.

4. Mr Williams is a skilled tradesman. He also has applied himself to creating a vegetable garden on the acreage where they live in the DD Town area. He regards it as not only a source of food for the family but a place of learning for the children.

5. He gave a moving account of arrangements made for dialysis three times a week for their adult son Mr Z. It was generally conceded that Mr Williams is a devoted parent who engages with children and is strong and confident in meeting their needs.

6. He attended the speech therapy that Y had, sitting in on the sessions to see what was done and to learn by it. He expressed obvious delight in her progress, “she has been voted as class representative.”  

7. Mr Williams freely conceded that he did not have a high opinion of Mr Gilligan but that he kept his opinion to himself. He knew there was an emotional attachment between the subject children and Mr Gilligan, and I am satisfied that he would keep his opinions well away from the children.

8. Mr Williams was unsurprised by the opinions expressed by the children to the ICL about their wishes over the period from February 2017 to February 2018. He clearly felt that the children had been influenced directly and indirectly to express such views and I consider that there is substance in his opinion.

9. It was generally conceded that Mr Williams is an impressive and committed parent, with the skills to take on what he has taken on in addition to these two children.

1. Ms Williams is 50, youthful and energetic. She described her niece, the mother in these proceedings, coming to visit each month with J. Her other niece Ms F and her six children were also welcome visitors.

2. Together with her husband, Ms Williams has a profound commitment to restoring and supporting family relationships. Ms Williams had given consideration to the fact that if the children came to live with her and her husband they may have to see Mr Gilligan by Court order. She had looked into contact centres as a possibility.

3. As her husband had said, she too did not want Mr Gilligan at the house. Not simply because there was an AVO restraining him from being there but because she does not consider that he is a proper person to be around children.

4. Ms Williams had also given consideration to the impact on the other children and of the possibility of competitiveness and jealousy. She had managed such feelings between CC, the almost five year old, and one of the twins.

The Family Consultant

1. The Family Consultant was very clear to say that in her view the children were at risk in the care of Mr Gilligan and they were not safe in his care. “Both of these children have some learning issues. [C] has a low IQ and very significant learning issues. She is not aware of a different way to live.”

2. The Family Consultant considered that given the nature and personalities of the children, there was a better possibility of adjusting to a new family. She conceded that they might love Mr Gilligan but she also considered that they have been neglected and abused, but that it was not too late for them. Her firm view was that they should be removed into the care of the Williams and that the relationship with Mr Gilligan should be severed. “They are vulnerable children. It would be impracticable to make orders for time with [Mr Gilligan] for them.”

   Q:Can the risks to the children be ameliorated?

   A:There is only one way to do that. Remove them from the household.

Proposals of each party

1. The maternal grandmother, Ms Addison, proposes that:

   a)The children live with her;

   b)Mr Gilligan be restrained from contacting the children at home, at school, at church and during activities; and

   c)The children spend time with each of their parents by arrangement.

2. Mr Gilligan proposes that:

   a)He have sole parental responsibility for the children;

   b)The children live with him;

   c)The children spend time with Ms Addison as agreed between himself and Ms Addison;

   d)Restraints be put in place against the children being brought into contact with the mother, the father, the mother’s sister Ms F, the Williams and the maternal grandmother’s partner.

3. The mother proposes that:

   a)The children live with the Williams;

   b)The Williams have parental responsibility;

   c)The mother spend time with the children by agreement between the Williams and herself;

   d)The children spend time with Ms Addison by agreement between the Williams and Ms Addison;

   e)The children spend no time with Mr Gilligan.

4. The Williams propose that:

   a)They have sole parental responsibility for the children;

   b)The children live with them;

   c)The children have no contact with Mr Gilligan;

   d)The children see Ms Addison on one Saturday per month;

   e)The children spend time with the mother on alternate weekends

   f)Specific issues.

Unacceptable Risk of Harm

1. Is there an unacceptable risk of harm to the children in the care of Mr Gilligan? 

2. I have come to the conclusion that there has been and continues to be unacceptable risk of harm to the children of both a sexual and emotional nature. I have taken the following factors into account, in no particular order:

   a)That Mr Gilligan was convicted and gaoled for two years as a result of a sexual assault on his partner, the mother of his only biological child. In this trial he minimised the seriousness of the offence by asserting that there had not been an assault but rather consensual sex. There was no evidence to support such a proposition.

   b)Both the mother and Ms F allege that Mr Gilligan touched them and spoke to them in a sexual way while they were young people in his household and he was their step-father.

   c)Both also allege serious sexual assault. Given the passage of time and the circumstances of the complaint being brought forward I am not in a position to make findings of assault.

   d)A complaint was made by Ms F in November 2005, then aged 19, to the Department. The complaint was about the treatment of her niece and nephew [the subject children] by Mr Gilligan based on how he treated her when she was a child in his household. At that time, the only apparent motive was concern for the safety of the children. The complaint is consistent with allegations raised later by Ms F herself and the mother to police in 2015.

   e)I take into account the vulnerability of the mother as a teenager, her lack of confidence and neediness. There may have been sexual intercourse, with the mother unable to speak of it for years. I also take into account the more forthright and confident personality of Ms F who complained to her mother and to the Department about Mr Gilligan. I have found that Mr Gilligan probably did furtively watch Ms F in the bathroom.

   f)I note that Mr Gilligan spoke freely about the sexual relationship between himself and Ms Addison in front of the children, particularly in anger, making comments to Ms Addison such as “there is no point to the relationship if you are not going to put out.” 

   g)Mr Gilligan drinks alcohol heavily and regularly. He has smoked cannabis heavily and regularly. When he feels upset he yells and throws things.

   h)He has cut the children off from their maternal family, taking the view that the maternal family have not “been there” for the children and therefore those relationships are finished.

   i)Mr Gilligan conceded that he held feelings of revenge from the time the mother and Ms F made allegations of sexual misconduct against him.

   j)C has been doing poorly at school and has been suspended on three occasions but Mr Gilligan has regarded her as doing well at school.

   k)Mr Gilligan did not arrange protective counselling for C despite the very strong recommendation by the Family Consultant that should happen.

   l)Mr Gilligan is quick to anger, verbally aggressive and has conducted himself in an antisocial manner whilst intoxicated in public places, such as a train, a park and the inner city area of Sydney. He is an exceptionally poor role model.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. In this case neither parent asks for parental responsibility for the children. The contenders for parental responsibility are Mr Gilligan, Ms Addison and the Williams.

2. On behalf of the ICL it was submitted that Mr Gilligan should have sole parental responsibility. This submission was made in the context of acknowledgement of risk of harm to the children from Mr Gilligan. The position was that there was a   neutralising risk of harm from the upheaval of dramatic change at their age.

3. In short the ICL took the view that the children wanted to be with Mr Gilligan and at their age should be left where they were. The point was also made that the children would resist a different parental authority.

4. Counsel for the ICL submitted that the Williams had a burden of care that was already onerous and the household could not withstand more. In my view that was an objective assessment which does not reflect the subjective capacity of the Williams to take on the care of these two children

5. Finally, that the change of school and friends, the loss of a job prospect for B,  weighed in favour of leaving them with Mr Gilligan.

6. In the event that the Court was not favourable to that proposal the ICL submitted that if there was to be a change, it should be to the Williams.

7. I cannot accept the submission for sole parental responsibility for the following reasons.

8. Firstly Mr Gilligan has had equal shared parental responsibility with Ms Addison since the 2013 orders. However after Ms Addison moved away, Mr Gilligan for reasons relating to his personal feelings ceased including Ms Addison in decision making about the children and chose to exclude her entirely after May 2016.

9. One consequence is that when C was suspended from school three times, suspected of using marijuana and was almost expelled in 2017, Mr Gilligan did not tell or call on the assistance of Ms Addison or anyone else in the family.

10. Mr Gilligan has been intent on punishing the maternal family, especially the mother and Ms F, for complaining about him. He has done so by cutting the children off and encouraging them to believe that no one else cares about them

11. A continuation of such behaviour is detrimental to the children. With sole parental responsibility Mr Gilligan would be endorsed as answerable to no-one.

12. Secondly the Family Consultant assessed the children as nice, easy going children who would be unlikely to rebel if moved.

13. Thirdly the children are members of a sibling group of six and were pleased and interested to meet their four younger siblings in March 2017.

14. Mr Gilligan’s exercise of parental responsibility has been to devalue those relationships continuing.

15. On behalf of Ms Addison it was conceded that if parental responsibility was not to be with her, it should be with the Williams.

16. I do consider that the people who are likely to make the best long term decisions for the children are the Williams. With the Williams C has her best chance of finishing school and improving in academic achievement. Careful consideration would be given to school or work for B.

17. I also consider that each of the Williams should have parental responsibility, although I have no doubt that they will consult with each other and compromise to meet the other’s view from time to time.

Primary Considerations

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

1. There is a real benefit to the children having a relationship with each of their biological parents. The knowledge of their true identity and place in their maternal and paternal family of origin is a human right.

2. The people they have known as their parents are Mr Gilligan and Ms Addison.

3. The Family Consultant expressed the view that there is an attachment between the children and Mr Gilligan but she was not confident of it being a secure attachment.

4. The Family Consultant stressed that Mr Gilligan is now all they have.

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

1. Mr Gilligan concedes that he has drunk alcohol to the point of being drunk throughout his life. He has come to police attention for anti-social behaviour while intoxicated in public on the train in a park.

2. He asserts that he has cut down to a carton of stubbies per week. Given his history it seems unlikely but if true even more unlikely that the habit would be sustained once these Court proceedings were over.

3. Mr Gilligan has also been a very regular user of marijuana. Not only does that mean he would have been unavailable to the children while drug affected but that he would lack any moral authority in telling the children not to use the drug themselves.

4. C has been caught at school in company of girls with marijuana on three occasions. She has been suspended accordingly. Mr Gilligan asserted his belief that she did not use or possess the drug but was just “in bad company.”

5. After the first two occasions he told her to stay away from those girls. The third occasion was the last day of the 2017 school year, with the same girls.

6. On balance it seems likely that C has used marijuana but if she hasn’t yet, she soon will.

7. Mr Gilligan concedes that he yells when he is stressed. His rude and uncontained behaviour towards the Family Consultant is evidence of him also being aggressive and insulting under pressure.

8. He described B as yelling and throwing things when he got angry and C yelling.

9. He is a dangerous role model for these children.

10. The Family Consultant was very clear to say that in her view that the children were at risk of harm and were aligned with Mr Gilligan.

Additional Considerations

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

1. The children have expressed various views about what they would like with regard to living and time and communication with family members.

To the ICL

1. The views of the children were shared with the ICL at three points in 2017 and during two telephone calls in 2018.[16]

   [16] Exhibit 15

2. The children consistently expressed a strong preference to remain living with Mr Gilligan. I accept they have.

3. The children have known Mr Gilligan as their father. When Ms Addison, whom they knew as their mother, moved out of their house in 2012 and then out of their lives in 2015, Mr Gilligan was their sole parent.

4. It seems highly unlikely that the children know that Ms Addison wanted to take them with her in 2012 but was stopped by Mr Gilligan or that at that time she applied to the police and then a Court to try to have them in her care.

5. It seems equally unlikely that they have been given a positive story of how they came into the care of Mr Gilligan and Ms Addison as small children. All they know now is that their mother “wasn’t there for them”. The mother suffered depression undiagnosed for some time. She is now quite well. She would hardly have subjected herself to a searching and distressing cross-examination if she was not concerned for their welfare.

6. Loyalty to Mr Gilligan alone would explain the children telling the ICL that they want “no further time with the Williams or the children in their care”.[17] The risk is that fear may also play a role given Mr Gilligan’s uncontained behaviour and language, especially when he has been drinking.

   [17] Exhibit 15, par 4

To the Family Consultant

1. The Family Consultant has had a long history with the children over almost five years.

2. In 2013: B was “very sad about the separation of the two people he regards as his parents”.[18]

   [18] Limited Issues Family Report dated 23/01/2013, par 24

3. C was reported to be “very confused as to just who her parents are and how she fits into the family at this time”. Both children were hoping their parents would get back together and not fight.

4. C was looking after her brother when he cried in the night because “Dad doesn’t hear him”.

In March 2017

1. B said he “loves his father very much and would not like to live with anyone else”. He said “they have lots of fun together”. He said he enjoyed seeing his mother [Ms Addison] and “she was nice to him and his sister. He did not want to spend overnight with [Ms Addison] because he prefers to sleep in his own bed”).[19]

   [19] CAPIA dated 2/03/2017, pars 50-51

2. C was enjoying seeing Ms Addison and did not know why that had stopped. C knew that her father was “pretty angry with [Ms Addison] and her family members at the moment.”[20]

   [20] CAPIA dated 2/03/2017, par 56

3. C was aware of siblings living with Ms Williams. She was curious to meet them but content to let the grown-ups sort that out.

In June 2017

1. B had recently seen Ms Addison and had been happy to see her. He had enjoyed C’s recent birthday party playing with his brother and sisters.

2. He said he did not want to go to his mother’s house (Ms Addison) or have sleepovers but could not explain why.

3. He spoke about his mother, “She is not my real Mum. She didn’t want to look after us when we were babies”.

4. He spoke about Mr Gilligan, “Dad is the one who has always been there for us. He does everything for us”.

5. He said he would be sad if he was not allowed to live with him anymore. B looked confused when asked about where that suggestion came from.

6. C spoke about her brother and sisters and her cousin CC who had come to a party for her with Ms Williams. She said she would like to see them all again soon.

7. She described Ms Williams and her husband as “really nice” and that she would like to spend more time with them and her younger sisters.

8. When asked what her father would have to say about that she became silent then said he would not like it. She is reported to have looked “very sad” at that point.

9. She was not sure about seeing her mother. She had been seeing Ms Addison and enjoying it.

B and C

1. With respect to both children the Family Consultant described them as “nice, friendly, outgoing children”.

2. Neither child is mature or sophisticated in knowledge of ways other people live. They have lived a sheltered and somewhat limited life. Since early 2015 they have had only Mr Gilligan and are entirely dependent on him.

3. Mr Gilligan’s view is that they have been let down by their family and they are guided by him.

4. In these circumstances I place much less weight on what the children have said to the ICL than would often be the case with children their age.

5. I place more weight on their comments over five years, as set out above, to the Family Consultant.

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

1. The relationship between the children and Mr Gilligan is one of complete dependence. He takes care of them and B in particular has fun with him.

2. The children are uncertain about developing a relationship with the mother.

3. The children enjoy spending time with Ms Addison and wish to continue to do so.

4. C is particularly interested in her younger sisters in the care of the Williams and also the Williams themselves and CC. B enjoyed meeting and playing with his brother J aged 14 and the younger girls.

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

1. The mother and father have not participated in decision making. They chose to hand parental responsibility to Mr Gilligan and Ms Addison.

2. Although there are 2013 Court orders made by consent for Mr Gilligan and Ms Addison to have equal shared parental responsibility, the evidence suggests that Mr Gilligan has been the decision maker.

1. Ms Addison chose to move away in early 2015. It was understandable. She had lived in cramped conditions in her daughter Ms F’s home for almost three years since her separation from Mr Gilligan. She was involved in the day to day care of the subject children, coming to the home in the morning to prepare them for school, seeing them regularly.

2. Mr Gilligan did not involve Ms Addison in the children’s life at school and she was unable to assert her authority with him or the school in order to obtain reports and attend parent/teacher interviews and events such as concerts and carnivals.

3. Ms Addison probably could not sustain the attenuated relationship with Mr Gilligan and the children in those circumstances.

4. Ms Addison returned from N Town to see the children every two to four weeks but it was not always possible. Mr Gilligan was hurt and angry with Ms Addison for leaving and having a new partner. They did not communicate well, if at all, after her departure.

5. The most adversely affected by the breakdown of communication were the children.

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

1. This is not a case where Child Support has been paid.

2. B’s special needs are met through NDIS funding.

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

1. This is a most serious consideration.

2. Moving the children from the care and household of Mr Gilligan will be a huge change for the children especially B who enjoys routine and predictability in his life.

A move to Ms Addison

1. If they were to move to live with Ms Addison they would be able to attend their current schools and regularly see Mr Gilligan

2. If it was the case that Ms Addison asked her partner to move out of their shared home and he was willing to do so without conflict ensuing, which is uncertain, the children would each have a bedroom but Ms Addison would be sleeping in the lounge room. Ms Addison herself said she would then be looking to move to a bigger property. There would be a prolonged period of unsettled arrangements.

3. However I am certain that in any event they would simply be directed by Mr Gilligan to return home to him and would do so.

A move to the Williams

1. If the children moved to live with the Williams they would become members of a household of nine people including them. A very big change. Three of those people would be their younger sisters.

2. They would, out of necessity, change schools. That will likely be a benefit for C who has been underachieving at school, has been often absent and has socialised with girls associated with misconduct and expulsion from school. I am confident that her education will be taken much more seriously by the Williams.

3. For B the change of home and school will be challenging for him to understand. B has a great love of animals. He has a part time job working with animals with some promise of it become permanent when he leaves school.

4. My impression is that the household of Mr Gilligan operates around B’s needs and interests and that B enjoys the affectionate support of Mr Gilligan and his sister C in a supportive and protective way. I bear in mind the assessment of the Family Consultant, who is a clinical psychologist, that B functions at the level of a much younger child.

5. If B was the only child in consideration the balance of risk could fall in favour of not moving him. However he loves his sister and does not want to be separated from her. Further he told the ICL that he would like to be at the same high school as his sister. If the parties all agree about anything it is that the children should not be separated.

6. I am confident that opportunities for B to be with, or work with animals will be explored by the Williams and that his education will be carefully considered. Enquiries at a local high school have already been made.

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

1. Mr Gilligan is likely to be profoundly unhappy about the children leaving his care. His wish had been for the maternal family to be cut out of the lives of the children.

2. Especially with the AVO in place (for the protection of Mr Williams), but even without it, there is no safe way for the children to spend time with Mr Gilligan if they are not living with him.

3. I conclude that there is a real risk of their placement elsewhere being undermined, and every effort being made to arrange, overtly or surreptitiously, for them to come back to him. This would likely extend in my view to contact by mobile telephone. The children have telephones which may have to be removed from them until they have adjusted to a new household.

4. The turmoil and conflict of loyalty for the children would be intolerable

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

1. Mr Gilligan can read but it is a slow and difficult process for him. He is functionally illiterate. He can help the children to some extent with school work. Other than a friend of his “sometimes coming round to help C with her homework” there has been no practical sustained assistance given that limitation.

2. Mr Gilligan has not shielded the children from his feelings about their family. One example arises from interviews for the Family Report. Mr Gilligan was told by the Family Consultant that the mother and Ms Addison were late and would not be seen with the children. Notably, the father said to the children, “it was to be expected of them”. He did not consider their disappointment at missing the opportunity nor their feelings.

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

The Child B

1. B has global developmental delay and autism. He has a stutter and difficulties both with receptive and expressive language.

2. He has asthma and dermatitis which conditions are managed by medication. His progress at school with the support of the special unit in which he learns has been good.

3. He is assessed by the Family Consultant to function at an age much less than his chronological age of 16.

4. He loves horses and sometimes pretends to be one.

The Child C

1. The Family Consultant noted that C has a very low IQ and very significant learning issues. Her school reports reflect the lowest level of achievement in all areas other than Food Technology which she apparently enjoys.

2. There is no evidence of C having been assessed for support in her education.

3. C is an adolescent and is almost 15. She urgently requires interested attention and support for decisions about her future at school and in life.

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

1. There is presently an AVO in place for the protection of Mr Williams. It arose from the uncontained conduct of Mr Gilligan around a birthday party for C organised by the maternal family in early 2017.

2. In 2012 an AVO was put in place for the protection of Mr Gilligan from Ms Addison. The order had the effect of making Ms Addison compliant with Mr Gilligan’s wishes around the children.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. In three years time both children will be 18 years old. However I do not accept the submission that it is too late to do anything to improve their situation.

2. They are both vulnerable children who need guidance, support and affection to assist them into a safe and engaged young adulthood.

3. As each turns 18, one, or both of them, may return to live or at least engage with Mr Gilligan. That will be their right. However they will do so armed with knowledge that there are other ways to live. For instance, that heavy drinking, smoking cannabis, behaving aggressively and yelling is not the only way to respond to stress and anxiety.

Any other factor the Court considers relevant

1. This is a case of missed opportunities, some of which are set out below.

2. By early 2004 it had become clear that the mother was unable to care for the children. Ms Addison or Mr Gilligan, or both, could have sought assistance for the mother from the Department. With help at that point she may have been able to recover from the depression developing, re-engage with the children, and eventually have them with her. Both parties chose not to take that course. They simply took over, “kept it in the family” and allowed the children to think they were their parents.

3. In 2005 Ms F rang the Department and raised concerns about the care of the children in the household she had just left. Her own experience of the devious behaviour of Mr Gilligan left her fearful for the safety of the children.

4. In 2012, when Ms Addison applied to the Federal Circuit Court for parenting orders she could have disclosed to the Family Consultant her fears about the impact on the children of Mr Gilligan drinking, using drugs and aggressively confronting those who displeased him. She could also have revealed that Mr Gilligan had served two years in gaol for a sexual assault on the mother of his then infant daughter. She chose not to, because although separated, the two of them were on good terms.

5. The mother and father could have raised their concerns with the Family Consultant and/or the Judge. The two parents attended for interviews. Each had gone on to re-partner and have more children. They were both living in close proximity to the subject children and often saw them.

6. They both agreed to an arrangement for the children to live with Ms Addison and spend time with Mr Gilligan. The Family Consultant noted this about the two parents:[21]

   Their main concern is that if the children live primarily with Mr Gilligan he will block their involvement in the children’s lives, whereas the maternal grandmother is less likely to do so.

   [21] Limited Issues Report dated 23/01/2013, par 19

7. This concern proved to be well placed.

8. On 1 July 2013 final orders provided for the children to live with Mr Gilligan. The parents did not attend Court when the orders were made. Either they had given up, or they assumed that the friendly relationship ongoing between Mr Addison and Ms Gilligan would allow them to keep some contact with the children

9. Between early 2015 and March 2016 Ms Addison lived in N Town with a new partner. The friendly relationship between Mr Gilligan and Ms Addison ended.

10. By January 2018 the application of Mr Gilligan was for sole parental responsibility and residence; time with Ms Addison by agreement; and a restraint on the children being brought in contact with the mother, father, maternal aunt, maternal great aunt and uncle and Ms Addison’s partner.

Conclusion

1. The children are at risk of harm in the household of Mr Gilligan.

2. Orders will be made for the children to move to live with the Williams who will each have parental responsibility for both of them.

3. No order for time and communication will be made for any extended family member including Mr Gilligan.

4. Who they spend time with and in what circumstances will be a matter for the Williams in their exercise of parental responsibility.

5. Orders are made accordingly.

I certify that the preceding three hundred and forty six (346) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 March 2018.

Associate:

Date:  6 March 2018