Batista and Marston and Ors

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATISTA & MARSTON & ORS

[2018] FCCA 3097

Catchwords:

FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Applicant:

MS BATISTA

First Respondent:

MR MARSTON

Second Respondent:

MR A MARSTON

Third Respondent:

MS MARSTON

File Number:

PAC 5688 of 2016

Judgment of:

Judge Newbrun

Hearing dates:

24, 25, 26, 27 September 2018

Date of Last Submission:

27 September 2018

Delivered at:

Parramatta

Delivered on:

5 November 2018

REPRESENTATION

Counsel for the Applicant:

Ms Lioumis

Solicitors for the Applicant:

Lamrocks Solicitors

Counsel for the First Respondent:

Mr Roberts

Solicitors for the First Respondent:

Western Sydney Legal Practice

Solicitors for the Second and Third Respondents:

Ms Howell of KJR Legal

Counsel for the Independent Children’s Lawyer:

Ms Falloon

Solicitors for the Independent Children’s Lawyer:

Robertson Solicitors

ORDERS

The children [X], born ~~3007~~ 2007 and [Y], born 2008 and [Z], born 2012 (collectively referred to as ‘the girls’) shall live with the mother.
The child [W], born 2010, (‘[W]’) shall live with the Second and Third Respondents (‘the paternal grandparents’).
The mother and the paternal grandparents shall have equal shared parental responsibility for [W] but before making a long-term parenting decision, shall use their best endeavours to consult with the father as to his views.
The mother shall have sole parental responsibility for the girls but before making a long-term parenting decision, shall use their best endeavours to consult with the father and the paternal grandparents as to their views.
[W] shall spend time with the mother and the girls during short school term holidays from the first Saturday until the second Thursday of the holiday period.
[W] and the girls shall spend time with the paternal grandparents from the second Thursday of every short school term holiday period until the last Sunday of the holidays.
During the December-January school holidays beginning in 2018 and each even-numbered year thereafter all of the children shall be:
(a)With the mother from 20 December until 20 January;
(b)With the paternal grandparents from 20 January to 25 January.
During the December-January school holidays beginning in 2019 and each odd-numbered year thereafter all of the children shall be:
(a)With the paternal grandparents from 20 December to 26 December;
(b)With the mother from 26 December until 25 January.
Not less than 14 days prior to the commencement of any school holiday period, the paternal grandparents and the mother shall consult and agree about:
(a)When [W] will be delivered to the mother and returned to the paternal grandparents;
(b)When the girls will be delivered to the paternal grandparents and returned to the mother.
(a)That the father shall spend time with [W] on each alternate Sunday or Saturday from 10 am to 4 pm during NSW school terms;
(b)That the time in Order 10(a) shall be in the general presence of the paternal grandparents;
(c)That the father shall spend time with the children on the Saturday or Sunday which coincides with Orders 6; 7(b); 8(a) from 10 am to 4 pm;
(d)That the time in Order 10(c) will be in the general presence of the paternal grandparents;
(e)The children shall not spend overnight time in the father’s sole care.
If the mother relocates to live within 70 kilometres of the paternal grandparents’ home, the parents and the paternal grandparents shall arrange to attend and participate in a Family Dispute Resolution conference to review arrangements for the children.
Each parent and paternal grandparent shall ensure that the children or any of them are able to communicate with a parent or grandparents by telephone at any reasonable time.
The parents and paternal grandparents shall keep each other advised at all times of their residential addresses and contact telephone numbers.
That the mother shall forthwith authorise the children’s [[X], [Y] and [Z]] school to send to the father directly, copies of the children’s school reports, newsletters and other such documentation that may be forwarded to parents from time to time.
The paternal grandparents shall forthwith authorise [W]’s school to send to the mother and the father directly copies of [W]’s school reports, newsletters and other such documentation that may be forwarded to parents from time to time.
The mother and paternal grandparents shall each ensure that the child/children that live with them attend school on time and each day and if a child or children do not attend school on a particular day to provide a reason to the school forthwith for their non-attendance.
If a child or children do not attend school on 10 or more days [either consecutive or cumulative] in any one semester of school [that is from the commencement of school at the beginning of the year until the end of school in Term Two] the mother or paternal grandparent shall advise the other parties of the child or children’s school attendance.
The mother shall enrol [Z], [Y] and [X] in an extra-curricular activity [outside of school] each term until each child attains the age of 13 years and thereafter subject to each child’s wishes.
That the mother and paternal grandparents shall forthwith notify the father and each other of any significant health issues relating to the children or any of them, or hospitalisation of any of them.
Notwithstanding the Orders above for parental responsibility, each parent and the paternal grandparents shall be at liberty to consult with and receive information from any professional treating or working with the children, including but not limited to medical professionals, teachers and therapists.
The parents and paternal grandparents shall not:
(a)Use physical means to discipline any of the children;
(b)Discuss the issues in the proceedings with any of the children;
(c)Speak critically about each other in the presence or hearing of the children;
(d)Use their best endeavours not to expose the children to violence including domestic violence;
(e)On a without admissions basis to use best endeavours to ensure that the children are not exposed to illicit substances whilst in the care of each parent and the paternal grandparents.
The Independent Children’s Lawyer is granted leave to provide a copy of the Family Consultant Report prepared by Ms B to Dr R.
The Independent Children’s Lawyer shall provide a copy of the Court Orders to School 1 Public School and School 2 Public School.

NOTATION

These Orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to show the child [X]’s correct date of birth.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5688 of 2016

MS BATISTA

Applicant

And

MR MARSTON

First Respondent

MR A MARSTON

Second Respondent

MS MARSTON

Third Respondent

REASONS FOR JUDGMENT

Introduction

These parenting proceedings relate to the children [X] born 2007, [Y] born 2008, [W] born 2010, and [Z] born 2012.
The father was born on 1971.
The mother was born on 1984. The parties commenced a relationship in 2003.
The parties commenced cohabitation in about 2007. The family home had been in Suburb A.
The parties separated in about early 2013. The children remained living with the mother.
In late 2015, the mother moved to the Region 1 (and ultimately to Town K) with the parties’ daughters, with the parties’ son remaining living with the father.
In about mid to late 2017, the father and the parties’ son [W] moved in to the paternal grandparents’ residence.
In April 2018 the father moved out of his parents’ residence, where [W] remains living.

Competing proposals

All parties, including the Independent Children’s Lawyer (“ICL”), agreed that the parties’ daughters should live with the mother.
The mother and the paternal grandparents sought final parenting Orders pursuant to a proposed Minute of Order (Exhibit D). Inter alia, they sought Orders that the child [W] live with the paternal grandparents; that the mother and the paternal grandparents have equal shared parental responsibility for [W]; that the mother have sole responsibility for the parties’ daughters; that the child [W] spend time with the mother and the parties’ daughters during short school holidays; that the child [W] and the parties’ daughters spend time with the paternal grandparents for discrete periods during school term holidays; that the father spend time with the child [W] on each alternate Saturday or Sunday from 10 am to 4 pm during New South Wales school terms, and that such time be in the general presence of the paternal grandparents; that the father spend time with the children on the Saturday or Sunday which coincides with the time to be spent by the children with the paternal grandparents and that such time also be in the general presence of the paternal grandparents; and that the children not spend overnight time in the father’s sole care.
The ICL’s proposed parenting Orders (Exhibit F), inter alia, also sought Orders that the child [W] live with the paternal grandparents; that the children spend time with the father in the general presence of the paternal grandparents; and that no child shall spend overnight time in the father’s sole care.
The father sought parenting Orders as set out in his Minute of Order (Exhibit E). Inter alia, he sought Orders that [W] live with the father; that the parties have equal shared parental responsibility for the children; and that the father spend time with the parties’ daughters on the last Saturday of every month from 9 am to 4 pm, with the father to travel to the mother’s place of residence to facilitate this time.
In the alternate, firstly, the father sought parenting Orders, inter alia, that the father spend time with [W] each alternate weekend from 5 pm Friday until 5 pm the following Sunday.
In the alternate, secondly, and in the event that the child [W] was ordered to live with the paternal grandparents and spend no overnight time with the father, the father sought Orders that he spend time with [W] each Thursday and Monday from the end of school until 7:30 pm (at which time the father shall supply an evening meal); and that during school holiday periods all children spend time together with the father on a weekday between 10 am and 4 pm for a two day period.
The paternal grandparents sought final parenting Orders as set out in their Amended Response filed 17 September 2018. Inter alia, they sought Orders that the child [W] live with themselves.

Material relied upon

The Applicant mother relied on the following documents:
a)Initiating Application filed 2 December 2016;
b)Affidavit of Ms Batista filed 18 September 2018.
The First Respondent father relied on the following documents:
a)Response filed 12 September 2018;
b)Affidavit of Mr Marston filed 12 September 2018.
The Second and Third Respondent paternal grandparents relied on the following documents:
a)Amended Response filed 17 September 2018;
b)Affidavit of Mr A Marston filed 19 September 2018;
c)Affidavit of Ms Marston filed 21 September 2018.
The ICL relied on the following documents:
a)Child Inclusive Conference Memorandum to Court dated 1 June 2017;
b)Child Inclusive Conference Memorandum to Court dated 16 October 2017;
c)Family Report dated 6 June 2018.
The following documents were tendered and became Exhibits in the proceedings:
a)Family Report of Ms B dated 6 June 2018, Child Inclusive Conference Memorandum to Court dated 1 June 2017, Child Inclusive Conference Memorandum to Court dated 16 October 2017 (Exhibit A);
b)Case Outline of the Independent Children’s Lawyer (Exhibit B);
c)Case Outline of the Applicant mother (Exhibit C);
d)Minute of Order Proposed by the Applicant mother and the Second and Third Respondent paternal grandparents (Exhibit D);
e)Minute of Order proposed by the Respondent father (Exhibit E);
f)Minute of Order proposed by the Independent Children’s Lawyer (Exhibit F);
g)Combined Tender Bundle (Exhibit G);
h)Record of the Respondent father’s criminal history (Exhibit H);
i)Minute of Order proposed by the Respondent father (Exhibit I).

Credit and reliability issues

The mother presented as an honest witness and often made concessions in relation to her parenting of the children.
The paternal grandparents gave their evidence honestly (the Court observing that the paternal grandmother was particularly frank in her evidence, often making statements against her interests) and were impressive witnesses.
The Court has concerns in relation to the reliability of the father’s evidence. The father’s oral evidence, in certain respects, was in stark contrast to his trial Affidavit. For example, in his trial Affidavit he referred to the child [W]’s recent diagnosis of attention deficit hyperactivity disorder (“ADHD”) and his taking of regular medication for that condition, with the child being under the care of paediatrician Dr R. He asserted in his trial Affidavit that he intended to follow any treatment plan put in place and as recommended by the doctors for this child. However, in oral evidence he stated that he proposed to have the child [W] cease taking his medication (Ritalin) for a short period of time to “see how he is”. The father stated that if need be the child could be placed back on this medication.
A further example was the father’s failure to refer in his trial Affidavit to an incident involving himself and the paternal grandmother about two and a half years ago when the father verbally intimidated her and damaged property in her residence, including by throwing chairs and using a knife to damage a kitchen table. The paternal grandmother caused an Apprehended Domestic Violence Order to be taken out against the father for her protection.
A further example was the father’s assertion in his trial Affidavit that he has been clean of illicit drugs since the birth of the eldest child [X], who was born on 2007 (at paragraph 14, he states, “I have remained clean and have not used drugs ever since the pregnancy of our first child”). Yet the father told the family consultant at the Child Inclusive Conference on 1 June 2017 that he had not used illicit drugs for about five years, suggesting that he had last used illicit drugs in about 2012.
Accordingly, the Court approaches the father’s evidence with considerable caution, and unless otherwise stated, prefers the mother’s and paternal grandparents’ evidence where in conflict with his evidence.

Evidence

After the parties’ separation the father spent time with the children about twice a month.
In April 2015 the parties participated in a Legal Aid family law conference in relation to their dispute regarding the children. They both signed a parenting plan providing, inter alia, that the parents have equal shared parental responsibility for the children; that the three daughters of the relationship live with the mother; that the child [W] live with the father; and that the parties spend regular time with the children who are not currently living with them on a regular basis and on special days. The father signed the parenting plan document on 14 April 2015 and the mother signed on 17 July 2015.
Following the conference at which the parenting plan was agreed to between the parties, [W] was still living with the mother. However, the mother agreed for this child to live with the father as the child had indicated to her that he would like to spend more time with the father. The mother also thought that this would make the father happy.
After the parenting plan was entered into, the father occasionally stayed at the mother’s residence at Suburb A during 2015. The father was using illicit drugs at this time.
The father was arrested following an incident with the mother on 10 August 2015. He admitted to punching the screen of the TV using his clenched right fist, resulting in damage to the TV, and throwing items all around the house. The children were present in the house during this incident.
On 14 August 2015 a provisional Apprehended Domestic Violence Order was made against the father for the protection of the mother.
After the above incident on 10 August 2015, the mother no longer allowed the father to stay at her residence.
In about October 2015 the parties had an argument. Thereafter, for about three weeks, the mother did not allow the father to spend time with the child [W], and this child remained in her care. During this time the child would complain about being bored. The father came to the mother’s house on one occasion and began asking to see [W]. After the child expressed a desire to go with his father, the mother allowed the child [W] to spend time with the father.
In late 2015 the mother moved from Suburb A to the Region 1. The three daughters lived with the mother and the child [W] remained primarily in the father’s care. The mother requested the father to spend time with the child [W] that on most occasions her requests were denied. The mother also asked the father whether he wanted to spend time with the parties’ daughters and he often declined.
The father did not allow the mother to spend time with the child [W] on Christmas 2015.
The father allow the mother to spend time with the child [W] on his birthday in 2016. Following this child’s birthday the mother requested to spend time with him on numerous occasions. However, the father would not allow this to occur.
At about this time the mother drove to the father’s home. She recalls that the child [W] had a dirty bed and blanket to sleep in.
The mother, in September 2016, arranged with the paternal grandparents to spend time with the child [W]. The child [W] told the mother that he slept on the lounge at the father’s residence whenever the father’s girlfriends were present in that residence. The child disclosed to the mother that the father often smacked him on the head, on the sides of his body and on his back.
A speech pathology assessment report for the child [W] dated 14 September 2016 indicated, inter alia, that the child presented with a moderate receptive language delay and borderline expressive language skills. He presented with spelling skills and phonological awareness skills within the severe range for his year level. This estimate stated that the child would benefit from ongoing speech pathology intervention to support his oral language skills and literary skills. It was stated that the child and his classroom teacher may benefit from strategies to support positive behaviour in the classroom.
The child [W] was suspended from school for a short period on 23 August 2016 for aggressive behaviour. The father received a short suspension from school notification of the same date. Then the child received a short suspension for three days on 19 September 2016 for aggressive behaviour. The father was informed that if he considered that correct procedures had not been followed, or that an unfair decision had been made, he could appeal.
Shortly after the suspensions, the mother moved up to Town L. Then in 2017 she moved to around the Town K area with the parties’ three daughters.
Following the Court’s Orders of 19 June 2017, the mother did a domestic violence course as well as completing a 123 Magic course.
In this Court on 5 December 2017, Orders were made on a without admissions basis that the child [W] live with the paternal grandparents; that the parties’ daughters spend time with the father and the paternal grandparents in early January 2018; that the parties’ daughters live with the mother; that the child [W] spend time with the mother from late December 2017 until late January 2018; and that the child [W] spend time with the mother for ten consecutive days each alternate school holiday period. Orders were also made for the child [W] to attend upon a paediatrician.

The child [W] spent time with the mother from late December 2017 until late January 2018. The child [W] told the mother that he was not happy at school. The child referred to the father in a disparaging manner.
After the above holiday period, the parties’ three daughters spent two nights at the home of the paternal grandparents. Further, the mother did speak to the child [W] by telephone and Facetime consistently.
On 6 April 2018 interim parenting Orders were made that the paternal grandparents and the mother have equal shared parental responsibility for the child [W]. Further interim parenting Orders by consent were made as between the paternal grandparents and the mother, that the paternal grandparents were permitted to forthwith attend upon a pharmacy to process the prescription that they held from Dr R, paediatrician, relating to Ritalin medication to be taken by the child [W] in accordance with Dr R’s recommendations.
The child [W] spent positive time with the mother and the parties’ three daughters in the April 2018 school holidays, which was positive time. The mother then saw the child [W] in the June/July 2018 school holidays, which was also positive time. After this holiday period, the parties’ three daughters spent two nights at the home of the paternal grandparents.
The mother continues to speak to the child [W] by telephone and Facetime consistently. The mother calls this child in the morning and evening each day and she usually gets through and is able to speak to him each day. The mother is due to spend time with the child [W] again in the next school holidays. The mother and the parties’ three daughters are looking forward to spending time with [W].
The mother states that the child [W] has spoken to her about his desire to live with her and not return to the paternal grandparents’ home.
The mother asserts that the child [W] has two friends who are sixteen and eighteen years old and live down the street from the paternal grandparents’ home, and she believes that this child spends a significant amount of time with these older persons.
The mother remains concerned about the child [W] being separated from his siblings on a prolonged basis. She is concerned about his emotional and overall wellbeing if he continues to live separately from herself and his siblings.
The mother understands that the child [W] has a bond with the paternal grandparents.
The paternal grandfather gave evidence.
The paternal grandfather is retired but previously worked as (occupation omitted) at the (employer omitted) for more than thirty years.
He married the paternal grandmother in 1979. At this time he became the stepfather to her four children, Mr L, Ms V, Ms Y and the father. Ms Y and the father took the paternal grandfather’s surname Marston.
The father and the paternal grandfather have always had a good father-son relationship. The paternal grandfather is the only father that the father has ever known and the father has never met his biological father.
Prior to April 2018, the child [W] was very disobedient, unstructured and lacking in even a minimum level of discipline. The paternal grandfather asserts that between both the mother and the father, there is a lack of discipline for [W] and an inability to teach him respect and offer a stable and structured home life.
Some time after the child [W] started kindergarten, this child was residing full time with the father in a granny flat on property owned by the father’s employer at the time. On many occasions the father would take the child [W] along with him to his work and to other places to meet the father’s friends.
The child [W] has disclosed to the paternal grandparents that he is aware of the names of illicit drugs such as ice and bong and identified an area to them where the father obtained his illicit drugs.
In about mid to late 2017, the father was evicted from his granny flat and asked the paternal grandparents if he could move into their residence with the child [W]. The father and the child then moved in to live in the residence of the paternal grandparents.
When the father was not at home in the residence of the paternal grandparents, the paternal grandparents were responsible for looking after and raising the child [W]. The father, upon a whim, would overrule attempts made by the paternal grandparents to instil structure into the life of the child [W]. The paternal grandparents attempted to try and stabilise the child [W]’s parenting in their own way. However, the child was very disobedient of their rules and requests. This child would often respond defiantly that the father had told him he could do something that the paternal grandparents did not allow. An example was the child [W] going off with friends on his scooter and not having any sense of what was an appropriate time to come home.
Since interim Orders made by this Court that the mother and paternal grandparents have equal shared parental responsibility for the child [W], the child [W] has presented a much nicer personality, is largely respectful to the paternal grandparents and follows their house rules. Further, the child [W] has formed an attachment to the paternal grandfather. The paternal grandfather has been able to use this attachment to guide the child [W] and encourage him to change.
The child [W] has his own room at the paternal grandparents’ house with his own toys and clothing, he enjoys riding his scooter, and is very comfortable at home with the paternal grandparents.
The paternal grandparents have noticed a change in the child [W]’s appearance and his appetite since starting on the medication to treat his recently diagnosed ADHD. It would appear that the child [W] commenced taking this medication shortly after the Court’s Orders of 6 April 2018.
The paternal grandfather asserts that the child [W] does make comments about returning to live with the mother. However, the paternal grandparents have explored this issue with the child [W] and they assert that his real motivation is his desire to be in the company of his sisters. The paternal grandparents do not dispute that it is an issue for all of the children that they all want to be closer to each other and see each other on a more regular basis.
The paternal grandparents caused the child to be assessed by a paediatrician, Dr R, on 14 March 2018.
Since the child [W] commenced taking the above medication, the paternal grandparents have observed this child to show a vast improvement in numerous personal and social areas. This in turn has assisted the paternal grandparents in managing this child’s behaviour more effectively. The child [W] has told the paternal grandparents that he himself feels better since taking the medication. In addition to the medication, the child [W]’s attitude is better, he seems happier overall, and there is now consistency in school attendance as well as general stability at home. The child [W] has also told the paternal grandparents that he is developing friends at school. This child also recently attended a sleep away camp with his school that he successfully participated in without incident.
The child [W] received another five day suspension recently for conflict with another boy. Nevertheless, the paternal grandparents have received reports from this child’s teachers indicating that the child’s behaviour has settled immensely.
The paternal grandfather spoke positively of the children’s stepsister Ms I, who he believes can provide another means of support and is someone who can guide the children as they grow up. The paternal grandfather also asserts that the children’s maternal grandmother and maternal aunt live locally in Suburb A, and the paternal grandparents even have extended family by way of the paternal grandfather’s siblings, nieces and nephews within a realistic distance. The paternal grandfather also asserts that the father is also local and will be able to visit.
Quite soon after this Court’s Orders of 6 April 2018, the father vacated the home of the paternal grandparents. Thereafter the paternal grandparents did not hear from the father until sometime in August 2018. The paternal grandfather asserts that the father’s absence suited the paternal grandparents because they were now in a position to provide parenting care for the child [W] without interference. The father did not spend time with the child [W] between 6 April 2018 and August 2018, apart from a telephone call.
The paternal grandparents have made it clear to the father that he is not able to return to live with them by reason of the possibility that the child [W] and/or his sisters may live with the paternal grandparents.
The paternal grandmother gave evidence.
The paternal grandmother is retired but previously worked as a (occupation omitted) for more than thirty years.
The paternal grandmother asserts that she and the father have a strong bond as mother and son. She states that she has her opinions on the father’s lifestyle and decisions he has made, and she is not shy in arguing the point. She asserts that the father still largely lives his life as he wants, and the father and the paternal grandmother always resolve their conflict.
The paternal grandmother asserts that she and the paternal grandfather have probably been too lenient with the father and they have failed to hold him to account for various ways he has upset their lifestyle over the years. She asserts that the father has burdened herself and the paternal grandfather and they have felt obliged to help out and support the children. She asserts that the father maintains his freedom to live his life as he chooses, and as a result, the father now has an entrenched sense of entitlement, will not listen unless he wants to, and he will not be held to account for anything he chooses not to.
The paternal grandmother refers to an incident with the father about two and a half years ago when she was left with no choice but to call the police, and this led to her taking out an Apprehended Domestic Violence Order for her personal protection from the father. She asserts that the order was necessary due to the level of aggression and agitation the father displayed and the risk that the paternal grandparents might be injured. The paternal grandmother asserts that the father has always had a quick temper and becomes irate and angry from time to time. During the above incident, whilst the father did not physically assault the paternal grandmother, the paternal grandmother asserts that the ongoing torrent of verbal abuse from the father became unbearable. In addition, she asserts that both she and the paternal grandfather were nervous and fearful as the father set about damaging their property and acting in an intimidating manner. She states that the father was banging the walls of their home, throwing chairs, and he also used a knife to damage their kitchen table. The paternal grandmother asserts that the father has not resided with the paternal grandparents since April 2018.
The paternal grandmother asserts the father’s life is unstable and that he often “takes off for weeks at a time”.
The paternal grandmother asserts that there were many verbal and physical altercations between the mother and the father during their relationship. At the beginning of the relationship, the father and the mother moved in to live with the paternal grandparents. The paternal grandmother recalls that on one occasion the paternal grandfather asked the mother to leave after the mother and the father engaged in a verbal fight about a cigarette. She asserts that this argument turned physical and the father was going to punch the mother but the paternal grandfather intervened. She states that she and the paternal grandfather had personally witnessed the mother and father smoking marijuana.
The paternal grandmother confirms that the child [W] seems to be improving since receiving treatment for his ADHD. She refers to this child recently starting to bring home merit award cards from school. The paternal grandmother has spoken to the school principal, and states, “while he still has improvement to go the school is relieved they no longer have the stress of concerns over his behaviour not being managed”.
The paternal grandmother believes she has a strong bond and attachment with the children.
The paternal grandmother asserts that the father treats the child [W] like a mate rather than a father-son relationship where he protects him and keeps him safe.
The paternal grandmother states that she understands the benefit of the child [W] seeing his sisters.
The paternal grandmother refers to the child [W] expressing a desire to move back to Town K to live with the mother. The paternal grandparents have spoken to the child [W] about it. The paternal grandmother asserts that [W]’s real desire is to see his sisters more often. However, he did state that he does miss the mother sometimes.
The father asserts that both he and the mother continued to take illicit drugs throughout their relationship until the mother became pregnant with their first child.
The father admits to slapping the mother’s face twice in about 2003 or 2004 when he was angry. The father asserts that he was angry at the mother because she was sleeping with a man in return for him providing her with illicit drugs. The mother reported this incident to the police and there was an Apprehended Domestic Violence Order taken out against the father. The father completed an anger management course.
The father asserts that he has been clean of illicit drugs since the birth of the parties’ eldest child. He refers to his undertaking drug testing as ordered by this Court on four occasions in 2018, with the test results being negative.
The father asserts that in about mid-2013 he began to suspect that the mother was having an affair with a man who lived across the road from the family home. The father states that from this time the parties would often have arguments about the mother having an affair.
The father asserts that prior to the Legal Aid conference in early April 2015, the mother had told him that he should come in and take the child [W], who was telling the mother that he wanted to stay with the father. The father asserts that the mother told him that this child kept playing up in the mother’s care and she couldn’t handle him anymore.
The father asserts that at the time of the parenting plan he was living in a granny flat which consisted of one large bedroom with a separate living area and bathroom. He asserts that he and the child [W] shared a room.
The father asserts that since the child [W] was about six and a half years old (about August 2016), that child and the father have lived with the paternal grandparents in their home at Suburb B. He asserts that he has observed the child [W] to have a strong loving relationship with the paternal grandparents and in particular with the paternal grandfather.

The Child Inclusive Conference Memorandum of 1 June 2017

At this interview, only the father and the child [W] attended and were interviewed. No explanation was provided by the mother to the family consultant as to her non-attendance.
The father told the family consultant, inter alia, that he admitted to slapping the mother twice about “eleven years ago”, but denied being otherwise violent towards her. He stated that he had been charged with assault in relation to this incident, and, a couple of years ago, had been charged with intimidating the mother. He said there are no Apprehended Domestic Violence Orders.
The family consultant noted that the father had red eyes and appeared somewhat agitated, although he remained cooperative throughout. The family consultant asked the father if he had used illicit drugs and he denied that this was the case, claiming that he had not done so for about five years.
The father stated that since separation has felt depressed. He said that he had been receiving assistance from “Ms K at Family Referral Services at Suburb C”. He stated that this was part of “FACS” and that Ms K was his caseworker and had periodically attended upon his home to monitor him and the child [W]. He reported that Ms K had now left this role and he was awaiting his new caseworker, so no home visits were currently being conducted. The father admitted that Family Referral Services had been considering subjecting him to drug testing but had not yet done so.
The father reported to the family consultant that he and the mother had experienced significant difficulties in communicating and cooperating regarding the children’s needs. He stated that this had resulted in him spending no time with the girls and the mother spending no time with [W]. He stated that he did not know where the girls live or what school they attended because he had no communication with the mother.
The father reported to the family consultant that he and the mother had separated about four and half years ago, although he said he had a poor memory so he could not recall exactly when this had occurred.
When asked by the family consultant why the father and the mother had taken the decision to separate the children, the father declared, “[h]e is my only son.”
The child [W] was interviewed by the family consultant. Inter alia, the child said that he had gotten into trouble a lot last year because his teacher had not been as nice. The child stated that he had been bullied about his weight last year but had not been bullied this year.
The child [W] told the family consultant that he rarely spent time with the mother but sometimes he got to ring her. He stated that the mother could be mean at times but he did want to see her. He said that the mother could be kind and grumpy but did give him enough food.
The child stated that he would like to live with the father and see the mother. He stated this was because he loved his father very much. The child stated that the father ensured that he had enough food and did not hit him. The child stated that the father did not leave him unattended and would just leave him with the paternal grandparents or his uncle if he had an appointment. The child said that he had good school attendance when he lived with the father and had only regularly missed school when he had been living with the mother. The child stated that he never saw the father drink alcohol and he was not scared of the father.
The child spoke positively of the paternal grandparents, stating that the paternal grandmother was a good cook. The child stated that he would like it if he and the father remained living with the paternal grandparents. The child stated that he liked seeing his sisters and he would like them to visit him at the paternal grandparents’ home.
Under the heading “Future Directions”, the family consultant stated, inter alia, that given the child’s presentation, it was recommended that he attend upon a paediatrician for assessment regarding his health, and, if relevant, any learning difficulties he may be experiencing.

Child Inclusive Conference Memorandum dated 16 October 2017

At this interview, only the mother and the parties’ daughters attended and were interviewed. No explanation was provided by the father to the family consultant as to his non-attendance.
The mother strongly maintained to the family consultant that the father was currently using methamphetamine intravenously, as well as smoking cannabis. She said he had a history of chronic drug use from his teenage years. She stated that in addition the father consumed alcohol to excess, typically when he was “coming down” from illicit drug use.
The mother stated that she consumed beer on the weekends but not during the week. She admitted that she had recently lost her licence for three months due to an alcohol-related driving offence (low range), after an accrual of demerit points for past driving offences.
The mother indicated that she and the father had no capacity to communicate or cooperate regarding the children and their needs.

The mother was of the view that the father loved the children but was unable to prioritise them over his drug use. She claimed that the child [W] was currently being cared for by the paternal grandparents about ninety percent of the time. When asked how she knew this, she indicated that she contacted the paternal grandparents every couple of days to speak to this child and that the father was rarely there.
The mother stated that the parties’ daughters generally wanted to see the father and the paternal grandparents.
The parties’ daughters were interviewed by the family consultant.
The child [Y], aged nine years, inter alia, stated that she missed her brother [W]. She wanted to live with the mother and that her sisters did also. She spoke positively of the mother. She did not think the mother consumed alcohol to excess. She described the father as grumpy and kind, basically grumpy. She stated she did not want to see the father because he was grumpy and mean and he would just try to take her and her sisters away from the mother, and she did not want that to happen. She stated that she found the paternal grandfather nice and would like to see him, but she did not want to see the paternal grandmother because she was always bickering. She conceded that she would spend time with the father if it was supervised by the paternal grandparents, as long as Court Orders were in place that ensured that she would be returned to the mother’s care. She said she was scared of the father because she feared that he might hit her or try to retain her in the future. She conceded that he had not hit her in the past.
The child [Z], aged five years and in kindergarten, was interviewed. This child spoke positively of the mother. She stated that she slept in the same bed as the mother. She stated that next year she was going to get her own bed. She referred to the father as a grumpy dad, stating that she recalled an incident when the parents fought and the father had a glass table out. The father pushed the mother and the mother got bruised on the leg. The child [Z] had observed this event and felt sad about it. She stated that she missed her brother. She stated that she was unsure if she would like to spend time with the father. She liked the paternal grandparents and would like to see them. She was not scared of them, or of the parties.
[X], aged ten years and in year five, was interviewed. She spoke positively about the mother. She stated that the mother did not have a lot of time to play with the children because she did a lot of house work and lots of cooking. She was not fearful of the mother. She described the father as very grumpy, stating that he shouted and hit the children a lot. Yet she was not scared of the father. She would like to spend time with the father, as long as Court Orders were in place to ensure that she would be returned to the mother’s care. She spoke positively about the paternal grandparents, stating that she had a very good relationship with them. She said that she felt closer to the paternal grandmother. She stated she would like to spend time with the father at the home of the paternal grandparents.
The family consultant stated, inter alia, that whilst both parents’ presentation at interview gave cause for concern that they may be underreporting their substance use, the father’s presentation gave greater cause for concern.

The Family Report

The Family Report is dated 6 June 2018 and was also prepared by family consultant Ms B.
The father reported to the family consultant that he has a poor memory so he was not able to provide a timeline for the history of care of the children.
The family consultant noted that at the time of writing the Family Report, the father had not filed any documents in the proceedings.
The family consultant recommended that her earlier Child Inclusive Conference Memoranda to Court be read in conjunction with the Family Report.
The mother stated that she was still a little bit fearful of the father, in view of alleged family violence previously perpetrated against her by the father during the relationship.
The mother stated that when the paternal grandfather took over the care of the child [W], this child’s school attendance improved.
The mother reported that she had completed a Court required domestic violence course and had also completed two parenting courses.
The paternal grandparents reported that the father no longer lived with them due to a recent argument with him. They said they did not know where he lived. The paternal grandmother stated that depending on “if we are arguing”, the father would stay some nights at their home to spend time with [W], and if the father did not visit, he would telephone the child [W] at least once per week.
The paternal grandmother stated that the father had difficulties managing anger. She stated that he would “scream in my face. I had enough, so I called the police and they put an AVO.” She claimed that the father had threatened to burn the house down on several occasions. The paternal grandfather reported that the father had threatened to knock him out in front of the child [W] and that [W] had said, “[h]e shouldn’t say that to you.” The paternal grandmother reported being fearful of the father if she was home alone with him. She stated that the father could also be warm and generous but “you don’t know what you are going to get.”
The paternal grandparents stated they had not seen the father use illicit drugs for a while. The paternal grandmother stated that the father drank alcohol “like a fish”.
The paternal grandparents stated that the father loved the children but was unable to provide routine, child focused care to them. The paternal grandfather stated that the father did not think of the child [W] as a son, but rather as his mate. The paternal grandmother stated that the father “shares dirty jokes, dirty books. Things a little eight year old shouldn’t know exist.” When asked about the father’s discipline of the child [W], they said it seemed “a bit rougher than normal discipline”. They claimed that the father was “quite happy for [W] to live with us. He doesn’t want to pay for him.” They stated that the father retained the parenting payment for [W].
The paternal grandparent said that the mother sometimes telephoned to speak to the child [W] very late, occasionally as late as 11:30 pm.
The paternal grandfather was able to communicate with the mother, but not the paternal grandmother.
The paternal grandparents stated that the child [W] had difficulty managing anger. They said that he had been diagnosed with ADHD by a paediatrician and had commenced taking Ritalin on 1 May 2018, reporting that both they and the school had already noticed a significant positive improvement in his attention span and behaviour. The paternal grandmother stated that [W] had told her that he was pleased with his improved behaviour and stated, “[w]hen I get angry in my mind, I can’t stop it. But when I take these tablets, I can stop it.”
The paternal grandparents said that the child [W] loved the father and wanted to spend regular time with him. They thought that the other children would want to spend time with the father.
The paternal grandparents said that they had seen both parents be violent towards the other in the past.
The father was interviewed by the family consultant.
The father was observed to fidget throughout his interview and his eyes were red. The father reported that he was in significant dental pain. He denied using illicit substances prior to the interview. He appeared evasive about some of his responses, particularly in relation to his drug use. On occasion, he provided information that did not correspond to the question put to him, although the response was coherent, and on other occasions the father made statements that appeared to contradict statements he had previously made in the Child Inclusive Conference about his past drug use. Due to asserted increasing pain at the interview, the interview was terminated early.
The father referred to an argument with the paternal grandparents about a paediatric appointment that they had taken the child [W] to because he had been unable to do this himself due to work commitments. The father asserted that the argument with his parents got a little bit heated, but he stated that he did not get angry but he did get direct when he was right and his mother could be very stubborn.
The father stated that the mother was a good mother but did not have a lot of patience. He stated that the mother could be very sarcastic and cruel when she spoke with him but she was not verbally abusive towards him.
The father alleged an incident at Easter 2017 when the mother allegedly assaulted him in the presence of the child [W]. When asked about the impact of this asserted incident on this child, the father stated that [W] had not been scared, declaring, “[h] is a tough nugget. He is like his father. He actually laughed about when Mummy punched me in the face.”
The father stated that he had been violent towards the mother on one occasion, slapping her when he found out she had been unfaithful. He also stated that he had wrestled the mother to the ground in self-defence during the incident at Easter 2017. He stated that the parties had occasionally engaged in heated discussions.
The father stated that he had last used illicit substances about twenty years ago. (The Court interpolates at this point that the father told the family consultant at the Child Inclusive Conference on 1 June 2017 that he had last used illicit drugs about five years previously.) The father asserted that he consumed about two standard alcoholic drinks per month.
The father stated that the paternal grandparents had treated him well as a child and that they loved their grandchildren. He said he had never witnessed family violence between them and he denied that they abused illicit drugs or alcohol. He acknowledged that the paternal grandparents did not pose any risk of harm to the children.
The child [W] was interviewed by the family consultant.
This child stated that his medication was helping him. He was concentrating some more and it felt good. He had not felt as angry since he commenced taking the medication. He commented that the father also had a bad temper like him.
When asked about the father, this child stated that the father “doesn’t live there. I don’t see him a lot. He is always at his friend’s place. I was with him the other weekend.” This child described the father as sometimes grumpy, sometimes happy. The child stated that the father did not get grumpy at him unless he did something wrong. He said that he was a bit scared of the father when the father smacked him.
This child stated that he did not mind that the father was no longer living with the paternal grandparents because the father and the paternal grandmother normally fight and they don’t get along well. He stated that when the parents argued he felt scared, because when the father used to fight with the mother, he used to hurt her. This child stated that he felt that he was losing his bond with the father stating, “[h]e does not really care about me. Doesn’t come and visit me and that.”
The child spoke positively about the paternal grandmother. He stated he felt close to the paternal grandmother. He became animated when speaking about the paternal grandfather, referring to him as ‘Pop’. He stated that the paternal grandfather was really good to him. He stated that if he didn’t have him, he probably wouldn’t have clothes, shoes and toys. He stated the paternal grandfather was good to him. He indicated that he felt very close to the paternal grandfather. He stated that he was not fearful of the paternal grandparents.
The child spoke positively about the mother. He spoke positively about his holiday visits to the mother. He had particularly enjoyed spinning time with his siblings. He stated he wants to live with the mother because he would get to play with his sisters. He stated that if he lived with the mother he would like to speak to the paternal grandparents a couple of times a week and stay with them for the full holidays.
The child was asked about whether he was experiencing bullying at school, to which he stated, “[n]o, I’m all right.”
The child [X] was interviewed. She was aged eleven years. She was in year six.
She spoke positively of the mother. She denied that the mother drank too much alcohol. She spoke positively of the paternal grandparents but did not want to live with them. She would like to spend some school holiday time with the paternal grandparents for about two days, or maybe a bit more, because of the driving time.
This child stated that the father could be both friendly and grumpy. She stated that prior to the separation, the father would get very angry if the children did something wrong and then would try to smack them. She stated that she was fearful that if she spent time with the father he would not return her to the mother’s care.
The child [Y] was interviewed. She was in year five. She was aged ten years.
She stated that of all the adults in her family, she felt closest to the mother, and wanted to live with the mother. She spoke positively of the mother. She stated that the mother’s alcohol consumption was not much anymore.
She stated that she felt somewhat fearful of the father because he smacked the child [W] and she was worried that he would smack her too.
She stated that she would consider spending time with the father as long as it was at the paternal grandparents’ house.
The child [Z], aged six years and in year one, was interviewed. She spoke positively of the mother. She stated that she spoke with the father on the phone. She thought that the father cared about her but she said she was unsure if she wanted to see him.
The children were observed with the paternal grandparents. It was a positive session and the children appeared comfortable with them. Warmth was observed in their relationship with the paternal grandparents.
The children were observed with the mother. The children appeared comfortable with the mother throughout the observation.
The Family Report writer provided her Evaluation.
She stated that given the age and stage of development of the children and the significant allegations of risk of harm in the proceedings, the Court could place little weight on the children’s wishes with regards to their living arrangements.
It was stated that the child [W] appeared to have an established and positive relationship with the paternal grandparents, particularly the paternal grandfather. It was not in dispute that this child had previously enjoyed a very close relationship with the father, but it appeared that this had recently deteriorated because this child did not perceive the father to be focused on him. This child had an established relationship with the mother and spoke positively about maintaining a relationship with her. This child spoke wistfully about living with his siblings.
The Family Report writer stated that the Court would need to take into account the fact that the child [W] has not spent significant time with the mother over the last four years and might have formed his views based on a successful school holiday visit. This did not reflect how this child would cope in the mother’s care during term time, which would require significant daily goal orientated behaviour.
As to the child [X], the Family Report writer stated that she had an established relationship with the mother. She had an established relationship with the father which appeared somewhat ambivalent due to their lack of time together over the last few years and her perception that the father was not particularly interested in prioritising a relationship with her. Despite this, this child appeared willing to spend time with the father.
The Family Report writer stated that the child [Y] had an established relationship with the mother which was reported as positive. She appeared sad and angry with the father about what she perceived to be the father’s lack of interest in communicating with her and his negative comments about the mother.
The child [Z] had an established relationship with the mother and reported it as positive. This child was familiar with the father but it did not appear that it was a well-established relationship. This could be because this child had few memories of spending time with the father, which may explain this child’s ambivalence about spending time with him.
The Family Report writer observed that the father appeared strongly opposed to the child [W] being medicated for his ADHD. She stated that the school records of the child [W] indicated that the school had made numerous requests to the father that he attend a meeting regarding the child [W]’s needs, but he had failed to do so. It appeared that the paternal grandparents attended the meeting with school staff in late March 2018 and a personalised learning plan was implemented for the child [W].
The Family Report writer inspected documents obtained under subpoena from the parties’ daughters’ school. The Family Report writer observed that information contained in these documents suggested that the parties’ daughters may be experiencing difficulties with regard to their behaviour and affect regulation.
The Family Report writer stated that there appeared to remain significant conflict between the parties, and between the father and the paternal grandparents. It was of serious concern to the Family Report writer that the children had been and may continue to be negatively psychologically impacted from witnessing family violence between the parties and between the father and the paternal grandparents.
The Family Report writer stated that concerns arose in the course of her assessment that the parents were minimising their substance use.
The Family Report writer stated that it appeared that the children’s school attendance had been poor in both parents’ care. Concerns were held that the father did not have adequate housing.
She observed that the father’s primary supports appeared to be the paternal grandparents, with whom he had a conflicted relationship.
She stated that it was unknown whether the mother would have the capacity to assist the child [W] with his special needs and ensure that he attended the intervention services that he needed. Concerns arose in the course of the assessment about the mother’s capacity to manage the child [W]’s behavioural difficulties without becoming reactive.
The Family Report writer stated that the father presented as having extremely limited insight into the children’s emotional world. In particular, he appeared oblivious to the impact on the child [W] of witnessing family violence, and the impact on the girls of a change of primary carer, particularly given that he did not appear to have spent much time with them over the last few years.
The paternal grandparents presented as genuinely caring about the children and willing to assist where possible. However, they acknowledged that their age and health issues meant that they did not have the capacity to take on the care of all four children. The paternal grandparents appeared to have greater insight into the children’s emotional life than the parents.
The Family Report writer stated that the children would likely benefit from maintaining a relationship with all the adults, but the level of contact that they have would need to be determined in light of the types and level of risk to the children that was determined by the Court.
The Family Report writer stated that based on information available in her assessment, it could not be recommended that the children live with the father. She stated that the father appeared to live a chaotic life and was unable to provide adequate housing to the children. The father did not present as having any plan for how he would provide for the children’s needs and facilitate the children’s relationship with the mother.

The Family Report writer stated that one option would be for the child to live with the paternal grandparents and spend half the school holidays with the mother, and for the girls to live with the mother and spend half the school holidays with the paternal grandparents. The children could then spend time with the father under the general supervision of the paternal grandparents. This arrangement was familiar to the children and thus they would not likely be as traumatised by it, although the girls would likely grieve that they would not be able to spend significant time with the child [W]. The child [W] would likely grieve about not having the opportunity to live with the mother and siblings but this arrangement may benefit him in that the paternal grandparents might be able to ensure that he received the interventions that he needed.
As to the option of all four children living with the mother and spending half the school holidays with the paternal grandparents, with the children spending time with the father under the general supervision of the paternal grandparents, for the child [W] to benefit from this arrangement, the Court would need to be confident that the mother would ensure that this child received the interventions that he needed and that the mother could adequately manage this child’s behavioural difficulties.
Liberal telephone contact was recommended with either option above.
It appeared that there was no capacity for the parents to communicate or cooperate regarding the children’s needs and limited capacity for the mother and the paternal grandparents to communicate or cooperate regarding the children. It was therefore recommended that whichever parent or carer the children primarily live with hold parental responsibility for them.
The Family Report writer gave oral evidence, having perused relevant updating material since the making of her report. She maintained her opinions, as stated in the Family Report, regarding the father and the child [W].
The Family Report writer expressed concerns in relation to the father’s capacity to care for the children in block periods. She opined that if the father’s care was poor in this regard, the children would likely view the father negatively. She stated that the mother and paternal grandparents’ proposal for the parties’ daughters (and [W]) to spend time with the paternal grandparents for some four nights during the short school term holidays was more appropriate than the father’s proposal for half the school holidays.
The Family Report writer expressed her concern as to the father’s stability of accommodation in the context of his parenting proposals in Exhibit E. She stated that she had never met Ms C. She queried whether Ms C would be able to cope with four children, some with behavioural issues, sharing the same residence.
As to the father’s proposal in Exhibit E that on the last Saturday of every month he spend time with the parties’ daughters from 9 am to 4 pm with the father to travel to the mother’s place of residence (in Town K) to facilitate this spend time period, the Family Report writer opined that the Court would need to be confident that the father was not affected by illicit drugs and that there was an absence of conflict between the parents, bearing in mind that the parents had poor conflict resolution skills.
The Family Report writer stated that, in the context of the father’s evidence that at least in the short term he would take the child [W] off the ADHD medication, it would be unusual to take a position contrary to a doctor’s advice without a second opinion, and assume the child would benefit (from such a unilateral action).
The Court accepts the evidence of the Family Report writer, both contained in the Child Inclusive Conference Memoranda, the Family Report and her oral evidence.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
a)Subsection (2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)Subsection (2)(b): the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In applying these considerations, as per section 60CC(2A), greater weight must be given to the “need to protect” the child over the benefit to the child of a meaningful relationship with the parents.
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The parties’ son [W] has a meaningful relationship with both parents. However, it appears that this child’s meaningful relationship with the father has recently deteriorated because this child did not perceive the father as focused on him.
The child [W] would benefit from having a meaningful relationship with the mother.
Again, the mother and the paternal grandparents seek a final parenting Order that this child live with the paternal grandparents and spend time with the parents (and in the case of the mother and paternal grandparents, they seek a parenting Order that the children’s time with the father be spent in the general presence of the paternal grandparents), whilst the father seeks an Order that this child live with him.
The child [W] would benefit from having a meaningful relationship with the father, subject to this child not being placed at risk of harm in his care.
The children’s daughters have a meaningful relationship with the mother and would benefit from a continuance of that relationship. The daughter [X] has an established relationship with the father which would appear to be somewhat ambivalent, related to their lack of time together over the last few years and this child’s perception that the father is not particularly interested in prioritising a relationship with her. The daughter [Y]’s relationship with the father appears to be strained, if not fractured. The daughter [Z]’s relationship with the father appears not to be a well-established relationship but she is well familiar with him.
The parties’ daughters would likely benefit from having a meaningful relationship with the father, provided they are not placed at risk of harm in his care.
Should the child [W] live with the paternal grandparents and spend regular time with each parent, in accordance with the final parenting proposals of the ICL, Exhibit F (but deleting the ICL’s proposed Order 10 and replacing it with the mother and paternal grandparents’ proposed Order 10 in Exhibit D), there is a significant prospect that his present relationships with the parents can be maintained, if not enhanced and further developed.
Should the parties’ daughters live with the mother and spend regular time with each parent, in accordance with the ICL’s Exhibit F (but deleting the ICL’s proposed Order 10 and replacing it with the mother and paternal grandparents’ proposed Order 10 in Exhibit D), there is a significant prospect that their present relationships with the parents can be maintained, if not enhanced and further developed.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

As to the competing proposals as to whether the child [W] should live with the paternal grandparents or the father, the Court is of the view that should this child live with the father or spend overnight time with him, an unacceptable risk would arise that he would be exposed to abuse, neglect or family violence.
The father’s evidence relating to his present proposals for accommodating himself and [W] was vague, limited, and unsubstantiated. There was no affidavit from his friend Ms C, asserted by the father to be aged about 65 years and having a broken neck, for whom the father proposes to be the carer. This child has no relationship with this woman. And the parties’ daughters have no relationship with this woman. There was a lack of material indicating the nature of the proposed premises, including which person holds any security of tenure, if any, in relation to the premises. Between April 2018 and August 2018 the father’s own accommodation position has been, in the words of the father in cross examination, “everywhere from Sydney to Suburb D”.
The father admitted to slapping the mother twice in 2003. This was a significant time ago. However, the father demonstrated violent behaviour towards the paternal grandmother, during the course of an argument with her, about two and a half years ago. The father verbally intimidated and threatened her, whilst screaming at her, and damaged property in her residence including throwing chairs and using a knife to damage a kitchen table. The paternal grandmother then caused an ADVO to be taken out against the father for her protection. The father did not refer to this incident in his own trial Affidavit. Further, the Court accepts the paternal grandfather’s evidence that the father had previously verbally threatened to burn down his home. And the Court accepts that the father had threatened to knock out the paternal grandfather in front of the child [W], which frightened the child.
The Court finds that the father has physically disciplined the child [W] and that on occasion this physical discipline has been excessive. The Court accepts the evidence of the paternal grandmother that she has observed the father pushing and shoving the child [W]. It is of concern that the father categorically denies smacking this child.
The father has a quick temper and is liable to lose control or become angry or irate, and the child [W] also has control problems with his anger. Were the child to live with the father or spend overnight time with him and not in the general presence of the paternal grandparents, these anger issues in both the father and the child would pose a significant risk of conflict occurring between them with the consequential real risk of harm to the child [W].
The father’s criminal history (Exhibit H) refers to a conviction for destroy or damage property, such offence occurring in August 2015, and in respect of which he received, inter alia, a bond and community service. This offence related to an incident involving the mother, at which time the children were present, and during which, inter alia, the father used his fist to damage a TV. In October 2015 he was convicted of the offence of “stalk/intimidate intend fear physical etc harm”, and was sentenced with a community service order and bond. The father failed to comply with the previous Court Order that he complete a course on domestic violence.
Whilst the Court acknowledges the father’s recent negative drug tests (though the request made on 20 September 2018 was only complied with by the father on the third day following such request, and this recent test result contained a sample integrity note from the pathologist indicating that the urine sample may have been diluted), the Court still remains concerned that he may still be ingesting illicit drugs and alcohol, to such an extent that his abilities to care for a child adequately would be impaired. The Court refers, for example, to its discussion under “Credit and reliability issues” above, in relation to inconsistent statements made by the father in his Affidavit compared to statements made to the family consultant as to when he last ingested illicit drugs.
The Court has significant concerns as to the father’s ability to cause the child [W] to attend school regularly and on a daily basis; inter alia, the Court refers to the child’s significant absences from kindergarten and Year 1 when the child was in the father’s primary care. This issue was not referred to in the father’s trial Affidavit.
The Court has significant concerns as to the father’s ability to meet this child’s schooling needs and requirements, including attending school meetings and completing school documents, which historically the father has failed to attend and complete respectively.
In this context, it is not without relevance that the father has placed significant reliance upon the paternal grandparents, in particular the paternal grandfather, to attend to certain needs of the child, including obtaining a referral from a general practitioner to take the child to a paediatrician, and then taking the child to a paediatrician. At one point in his oral evidence, the father stated that if he could not discharge his duties as a parent, he would rely upon his parents.
The Court has significant concerns in relation to the father’s intention to, at least in the short term, if this child was in his primary care, remove the child’s ADHD Ritalin medication, in circumstances in which the child’s school, paternal grandparents and the child himself indicate the significant benefits the child has experienced to date since taking such medication: the child’s concentration has improved, his behaviour has improved to some extent, including assisting him with impulsive behaviour and hyperactivity, and he has developed friendships. In this context, the Court finds that the father is quite oppositional to the child ingesting this medication despite the views of the paediatrician Dr R, whose views are known to the father. The Court does not accept the father’s assertions that the child’s improvements occurred after another child, who was allegedly bullying the child at his school, was removed from the school.
The Court accepts the evidence of the Family Report writer that the father has extremely limited insight into the children’s emotional world. In particular, he was oblivious to the impact on the child [W] of witnessing family violence, and the impact on the parties’ daughters of a change of primary carer, particularly given that he had not spent much time with them over the last few years.
Should the child [W] spend time with the father in the general presence of the paternal grandparents, in accordance with the final parenting proposals of the ICL, Exhibit F (but deleting the ICL’s proposed Order 10 and replacing it with the mother and paternal grandparents’ proposed Order 10 in Exhibit D), together with the other proposed protective restraining Orders in Exhibit F, the risk of the child [W] being exposed to abuse, neglect or family violence by the father can be minimised.
Should the Court make final parenting Orders as sought by the father in his Minute of Order, Exhibit E (being his primary parenting proposals), in particular his proposed parenting Order that the parties’ daughters spend half of every school holidays with him, including his proposal that he spend unsupervised time with the parties’ daughters on the last Saturday of every month from 9 am to 4 pm, the Court is of the view that an unacceptable risk would arise that the parties’ daughters would be exposed to abuse, neglect or family violence. In this regard the Court refers to its discussion above, under this need to protect primary consideration, in relation to the child [W].
The Court also refers, in this context, to the parties’ daughters’ present limited (or lack of) relationship with the father, the significant lack of time spent by these children with the father over the last two or three years, and their wish to spend modest time with the father in the presence of the paternal grandparents. To accede to the father’s proposals with respect to the parties’ daughters would carry the real risk of the daughters, if not one or more of them, becoming oppositional during such block time sought to be spent by the father with them.
Further, as to the father’s proposed Order 3 in Exhibit E, that he spend time with the parties’ daughters on the last Saturday of every month from 9 am to 4 pm with the father to travel to the mother’s place of residence (in Town K) to facilitate to spend time period, there is a significant risk that the parties would come into conflict with each other in the presence of the parties’ daughters.
The Court is not satisfied that the above significant risks would be minimised by restraining Orders, and in this respect the Court refers inter alia to its discussion above under “Credit and reliability issues” pertaining to the father.
The Court’s views above are consistent with the evidence of the Family Report writer.
The Court places significant weight on this need to protect primary consideration.

Section 60CC(3) - additional considerations

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

The Court does not place significant weight on the children’s views as to their living arrangements, given the age and stage of development of the children and the risk issues discussed above under the need to protect primary consideration.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The child [W] has positive relationships with the paternal grandparents, and a particularly close relationship with the paternal grandfather. The child is well settled in the care of the paternal grandparents, having been living with them for at least one year. They provide warmth, sound routine and stability for this child. They are very responsible grandparents and have the best interests of this child at heart. The Court is satisfied that they have act and will act, if necessary, protectively for this child. Both parents speak positively of the paternal grandparents’ care of this child. The mother confirmed that the paternal grandparents are meeting this child’s special needs.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

It would appear that historically each parent has failed, to a not insignificant extent, to permit the other parent to spend time with the children or child in their primary care. This was due to, inter alia, a lack of trust between the parents as to whether the other parent would return the child or children to their primary care.
Between about April 2018 to August 2018, in particular, the father failed to spend regular time or regularly communicate with the child [W], who was living with the paternal grandparents.

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

In recent months, the father has failed to pay any child support to the paternal grandparents in respect of the child [W].

(d) 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 (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussions above in relation to the primary considerations. Inter alia, the children would be placed at significant risk of harm if the father’s proposals were adopted.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are practical issues relating to the parties’ daughters spending regular time with the father by reason of geographical issues.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The mother has such capacities. The father is probably able to contribute to the children’s intellectual needs but he has deficiencies in relation to meeting their emotional needs, as referred to above under the need to protect primary consideration.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The Court refers to the Family Report writer’s assessment of the children and the Court’s discussion of the parents above under the primary considerations.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The Court refers to its discussion above under the primary considerations.

(j) Any family violence involving the child or a member of the child's family.

The Court refers to its discussion above under the need to protect primary consideration.

(k) 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, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

The Court refers to the police seeking an ADVO for the protection of the paternal grandmother, by reason of the father’s conduct towards her.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

The ICL’s proposed Orders in Exhibit F (but deleting the ICL’s proposed Order 10 and replacing it with the mother and paternal grandparents’ proposed Order 10 in Exhibit D) would be least likely to lead to the institution of further proceedings in relation to the children.

m) Any other fact or circumstance that the court thinks is relevant.

The Court has significant concerns about making any final parenting Orders that effectively would permit the father to negotiate the extent to which he spends time with the child [W] (as well as the parties’ daughters) with the paternal grandparents. In the view of the Court such Orders would carry the significant risk of there being conflict between the paternal grandparents and the father in the presence of the child or children, and/or the parenting capacity of the paternal grandparents being detrimentally affected. Further, the Court is of the view that the father spending each alternative Sunday or Saturday from 10 am to 4 pm with the child [W], or with the parties daughters when they are spending time with the child [W] and the paternal grandparents, in the general presence of the paternal grandparents, will minimise the risk of the father coming into conflict with either or both of the paternal grandparents, and will minimise the risk of the children or any one of them being exposed to verbal abuse or family violence by the father.
The ICL’s proposed final parenting Orders in Exhibit F (but deleting the ICL’s proposed Order 10 and replacing it with the mother and paternal grandparents’ proposed Order 10 in Exhibit D) would permit the father to spend certain time with the parties’ daughters when the parties’ daughters are spending time with the paternal grandparents. They would permit the father to spend certain time with the child [W] whilst this child is living with the paternal grandparents, provided that such time occurs in the general presence of the paternal grandparents.
The paternal grandparents have told the father that he is not permitted to return to live with them in their residence. The paternal grandfather stated that he and his wife have been assisted by the previous interim parenting Order relating to themselves and the mother having equal shared parental responsibility for the child [W], insofar as that Order requires the father to spend time with the child [W] in their presence. The paternal grandfather stated that the father can be verbally abusive to himself and the paternal grandmother; he can raise his voice and make threats. The Court refers to the adverse incident involving the father’s abusive and threatening behaviour to the paternal grandmother two and a half years ago which resulted in an ADVO being taken out against the father. This incident was particularly frightening for the paternal grandmother. The paternal grandfather stated that he would not permit the father to spend overnight time with the child [W] in their home. The paternal grandmother gave evidence that she and the father disagree on a lot of issues pertaining to the child [W]’s upbringing, including his ingestion of medication, and they are both loud when they argue. She stated that since the father left their home, she and the paternal grandfather have been able to manage the child [W]’s needs.
The paternal grandmother stated that the father was not respectful to herself and the paternal grandfather as he would walk in and out of their home as if he owned the house. The paternal grandmother stated that she would prefer the father to spend time with the children at specific times (under Court Orders) and she stated that a six hour block once a fortnight for the child [W] to spend time with the father would be preferred. She also stated that it would be preferable for such six hour block to occur on a Saturday or Sunday when all the children are spending time with the paternal grandparents and the father is coming to their home.
As to the father’s proposed final parenting Orders in the alternative (see Exhibit I), the Court’s concerns remain that the children would be placed at an unacceptable risk of significant harm if such Orders were made, noting that under these alternative proposals of the father, the children would be spending time with the father other than in the general presence of the paternal grandparents, and in this regard the Court refers to its discussions above under the need to protect primary consideration.
The father’s belated oral submissions that he is unavailable to spend time with the children on Saturdays and Sundays because he is then working is quite inconsistent with his final parenting proposals in Exhibit D and alternative final parenting proposals in Exhibit I. Further, his alternative parenting proposals that the child [W] (in the event that this child is to live with the paternal grandparents and not have overnight time with the father) spend each Thursday and Monday from end of school until 7:30pm would carry the significant risk that this child’s school week routine, presently being enjoyed whilst living with the paternal grandparents, would be adversely affected.

Parental responsibility

The parties have no ability to communicate or cooperate in relation to the parenting of the children. They do not have an ability to reach agreement on major decisions affecting the children in a timely fashion. They remain distrustful of each other and in significant conflict in relation to the children.
The Court observes that the ability of the father to cooperate and communicate with the paternal grandparents in relation to the care of the child [W] is quite unsatisfactory. The Court observes that the father and the paternal grandmother disagree on many matters pertaining to the child [W]’s upbringing, including the child’s ingestion of medication. And the paternal grandmother asserts, and the Court accepts, that the father can be disrespectful to the paternal grandparents, as demonstrated, for example, by the way he would walk in and out of their home at will.
The mother has been the parties’ daughters’ primary carer from birth to date. She was the child [W]’s primary carer until that child came into the father’s primary care following the separation, noting that that child came into the primary care of the paternal grandparents about a year ago. In the above circumstances, and where the parties’ daughters will remain living in the mother’s primary care, it will be in the best interests of the parties’ daughters that the mother have sole parental responsibility for them.
In relation to the child [W], the Court refers to its discussion above under the primary considerations relating to the child’s relationship with the father. The child’s relationship with the paternal grandparents is positive, warm and established. Where it will be in the best interests of the child [W] to live with the paternal grandparents, where it is likely that the mother can sufficiently communicate and cooperate with at least the paternal grandfather in relation to major decisions affecting the child [W], and again in circumstances where the parents of [W] cannot communicate or cooperate in relation to this child (or indeed the other children), it will be in the best interests of the child [W] for the mother and paternal grandparents to have equal shared parental responsibility for this child.
In each case, whether for the child [W] or for the parties’ daughters, the paternal grandparents and mother, or the mother alone, respectively, should use their best endeavours to consult with the father as to their views or view regarding a major decision to be made for such child or children.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following final parenting Orders:
(1)     The children [X], born 2007 and [Y], born 2008 and [Z], born 2012 (collectively referred to as ‘the girls’) shall live with the mother.
(2)     The child [W], born 2010, (‘[W]’) shall live with the Second and Third Respondents (‘the paternal grandparents’).
(3)     The mother and the paternal grandparents shall have equal shared parental responsibility for [W] but before making a long-term parenting decision shall use their best endeavours to consult with the father as to his views.
(4)     The mother shall have sole parental responsibility for the girls but before making a long-term parenting decision shall use their best endeavours to consult with the father and the paternal grandparents as to their views.
(5)     [W] shall spend time with the mother and the girls during short school term holidays from the first Saturday until the second Thursday of the holiday period.
(6)     [W] and the girls shall spend time with the paternal grandparents from the second Thursday of every short school term holiday period until the last Sunday of the holidays.
(7)     During the December-January school holidays beginning in 2018 and each even-numbered year thereafter all of the children shall be:
(a)     With the mother from 20 December until 20 January;
(b)     With the paternal grandparents from 20 January to 25 January.
(8)     During the December-January school holidays beginning in 2019 and each odd-numbered year thereafter all of the children shall be:
(a)     With the paternal grandparents from 20 December to 26 December;
(b)     With the mother from 26 December until 25 January.
(9)     Not less than 14 days prior to the commencement of any school holiday period, the paternal grandparents and the mother shall consult and agree about:
(a)     When [W] will be delivered to the mother and returned to the paternal grandparents;
(b)     When the girls will be delivered to the paternal grandparents and returned to the mother.
(10)
(a)     That the father shall spend time with [W] on each alternate Sunday or Saturday from 10 am to 4 pm during NSW school terms;
(b)     That the time in Order 10(a) shall be in the general presence of the paternal grandparents;
(c) That the father shall spend time with the children on the Saturday or Sunday which coincides with Orders 6; 7(b); 8(a) from 10 am to 4 pm;
(d)     That the time in Order 10(c) will be in the general presence of the paternal grandparents;
(e) The children shall not spend overnight time in the father’s sole care.
(11)   If the mother relocates to live within 70 kilometres of the paternal grandparents’ home, the parents and the paternal grandparents shall arrange to attend and participate in a Family Dispute Resolution conference to review arrangements for the children.
(12)   Each parent and paternal grandparent shall ensure that the children or any of them are able to communicate with a parent or grandparents by telephone at any reasonable time.
(13)   The parents and paternal grandparents shall keep each other advised at all times of their residential addresses and contact telephone numbers.
(14)   That the mother shall forthwith authorise the children’s [[X], [Y] and [Z]] school to send to the father directly, copies of the children’s school reports, newsletters and other such documentation that may be forwarded to parents from time to time.
(15)   The paternal grandparents shall forthwith authorise [W]’s school to send to the mother and the father directly copies of [W]’s school reports, newsletters and other such documentation that may be forwarded to parents from time to time.
(16)   The mother and paternal grandparents shall each ensure that the child/children that live with them attend school on time and each day and if a child or children do not attend school on a particular day to provide a reason to the school forthwith for their non-attendance.
(17)   If a child or children do not attend school on 10 or more days [either consecutive or cumulative] in any one semester of school [that is from the commencement of school at the beginning of the year until the end of school in Term Two] the mother or paternal grandparent shall advise the other parties of the child or children’s school attendance.
(18)   The mother shall enrol [Z], [Y] and [X] in an extra-curricular activity [outside of school] each term until each child attains the age of 13 years and thereafter subject to each child’s wishes.
(19)   That the mother and paternal grandparents shall forthwith notify the father and each other of any significant health issues relating to the children or any of them, or hospitalisation of any of them.
(20)   Notwithstanding the Orders above for parental responsibility, each parent and the paternal grandparents shall be at liberty to consult with and receive information from any professional treating or working with the children, including but not limited to medical professionals, teachers and therapists.
(21)   The parents and paternal grandparents shall not:
(a)     Use physical means to discipline any of the children;
(b)     Discuss the issues in the proceedings with any of the children;
(c) Speak critically about each other in the presence or hearing of the children;
(d)     Use their best endeavours not to expose the children to violence including domestic violence;
(e) On a without admissions basis to use best endeavours to ensure that the children are not exposed to illicit substances whilst in the care of each parent and the paternal grandparents.
(22)   The Independent Children’s Lawyer is granted leave to provide a copy of the Family Consultant Report prepared by Ms B to Dr R.
(23)   The Independent Children’s Lawyer shall provide a copy of the Court Orders to School 1 Public School and School 2 Public School.

I certify that the preceding two hundred and forty four (244) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 5 November 2018

[2018] FCCA 3097

5 November 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness