Bussell & Sturgess & Anor

[2011] FamCA 845

FAMILY COURT OF AUSTRALIA

BUSSELL & STURGESS AND ANOR [2011] FamCA 845

FAMILY LAW – CHILDREN – parental responsibility – with whom children live, spend time and communicate – best interests of children - where the three subject children live with the paternal grandmother pursuant to interim parenting orders – where the mother and father have separated and reconciled several times – where the maternal aunt intervened in the proceedings - where the mother, father and maternal aunt withdrew from the proceedings – children have been exposed to virulent family violence between the parents – children have been physically abused by the mother – children’s neglect in the care of the mother – where the children have a primary meaningful relationship with the paternal grandmother and have a less significant meaningful relationship with the father – where the eldest two children no longer have any meaningful relationship with the mother – evidence of children being at risk of harm, including serious psychological or physical harm, in the parent’s care – mother’s continuing use of illicit drugs - finding neither parent has capacity to provide for the children’s needs and each has a deficient attitude to the responsibilities of parenthood – presumption of equal shared parental responsibility rebutted – children’s views – where eldest two children expressed views of not wanting to spend time with the mother and maternal aunt - evidence demonstrating children’s improvement following their commencement of residence with paternal grandmother – sole parental responsibility allocated to paternal grandmother – father’s time with children to be dictated by the paternal grandmother – injunctions restraining the children from spending time with the mother and maternal aunt

Family Law Act 1975 (Cth) ss 60B, 60CC

Dennett & Norman (2007) FamCA 57
Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Potts & Bims (2007) FamCA 394

APPLICANT: Mr Bussell

FIRST RESPONDENT: Ms Sturgess

SECOND RESPONDENT: Ms B

INTERVENOR: Ms C

INDEPENDENT CHILDREN’S LAWYER: LEGAL AID NSW

FILE NUMBER: NCC 1033 of 2010

DATE DELIVERED: 6 June 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 6 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE FIRST RESPONDENT: N/A

SOLICITOR FOR THE FIRST RESPONDENT: N/A

COUNSEL FOR THE SECOND 

RESPONDENT:

Mr Weightmann

SOLICITOR FOR THE SECOND

RESPONDENT:

Graeme J Peters Solicitors

COUNSEL FOR THE INTERVENOR: No appearance

SOLICITOR FOR THE INTERVENOR: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

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

Orders

1. All former parenting orders relating to the children D, born … 2002, E, born … 2004, and F, born … 2008, (“the children”), are discharged.

1. The paternal grandmother shall have sole parental responsibility for the children.

1. The children shall live with the paternal grandmother.

1. The children shall spend time with the father at times and under conditions determined by the paternal grandmother.

1. The parties are restrained from causing or permitting the children to spend any time with the mother.

1. Each of the parties shall take all reasonable steps to ensure that the children are able to communicate in writing with the mother and father in the following manner:

a.By the mother and father being able to send letters, cards and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day; and

b.By the paternal grandmother promptly sending to the mother and father any letters, cards, photographs or other written communication that the children, or any of them, wish to be conveyed to the mother or father.

1. The parties are restrained from causing or permitting the children to spend any time with the Intervener.

1. The paternal grandmother shall ensure the attendance of the children at psychological counselling sessions with Mr G, or such other psychologist as may be recommended by the H Clinic at I Town, New South Wales, for as long as deemed necessary by that psychologist.

1. The paternal grandmother shall ensure the attendance of the two eldest children at the “Kids Time” program conducted by J Counselling at K Town, New South Wales, for as long as deemed necessary by the officer in charge of J Counselling.

1. Leave is granted to the paternal grandmother to furnish copies of the affidavits of  the Family Consultant affirmed on 22 July 2010 and 16 March 2011 to:

a.Mr G, the treating psychologist for the children; and

b.The Director-General of the New South Wales Department of Family and Community Services.

1. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

1. The paternal grandmother shall notify the mother and father of any medical emergency, illness or injury suffered by the children warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the mother and father about the condition and treatment of the children.

1. The paternal grandmother shall authorise and request the principal of any school attended by the children to provide to the mother and father, at their expense, copies of all school reports and school photograph order forms relating to the children.

1. The Independent Children’s Lawyer shall, within seven days hereof, explain to the children the effect of these Orders, and for that purpose the paternal grandmother shall comply with all reasonable directions of the Independent Children’s Lawyer for the presentation of the children to her.

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

1. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

1. Any and all outstanding applications are dismissed.  

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1033 of 2010

Mr Bussell

Applicant

And

Ms Sturgess

Respondent

And

Ms B

Second Respondent

And

Ms C

Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are parenting proceedings contested by numerous parties, including the applicant father, respondent mother, second respondent paternal grandmother and a maternal aunt who has been designated the intervener.  

2. The three children who are the subject of these proceedings are D, born … 2002, E, born … 2004, and F, born … 2008.

3. Those three children have been living with the paternal grandmother pursuant to interim parenting orders.

4. As the trial of these proceedings approached, the applicant father and respondent mother, who have reconciled and resumed cohabitation, filed Notices of Discontinuance. The intervener also filed a Notice of Discontinuance. 

5. The trial was therefore attended by only the paternal grandmother and Independent Children's Lawyer – both of whom proposed consistent orders in respect of the children.

6. The mother and father together belatedly attended the Court on the day of trial at about 11.15 am, both indicating they did not intend to participate in the proceedings as parties any further.

Background

1. The mother and father began their relationship in 1988.  They have separated and resumed cohabitation several times.  As mentioned a moment ago, they are presently cohabiting.  The mother has recently borne a fourth child in May 2011, but that child is not the subject of these proceedings.

2. These proceedings were commenced by the father in March 2010 during a period of separation between him and the mother. The proceedings were commenced in the Local Court of New South Wales at K Town, but that court transferred the proceedings to this Court. 

3. An urgent interim hearing was conducted by this Court on 26 July 2010, at which time interim orders were made to the following effect (see Bussell & Sturgess [2010] FamCA 709) – the paternal grandmother was joined to the proceedings as a party and the children were ordered to live with the paternal grandmother, who was also allocated sole parental responsibility for the children. The eldest child had been living with the paternal grandmother since December 2009 by private arrangement between the parties. No orders were then made specifying the time to be spent by the children with the mother and father due to an absence of evidence about the viability of such orders.

4. At that point in time, the mother had already relocated her residence from the Central Coast of NSW to the Far North Coast of NSW and the father was in the course of so doing. 

5. The chaos in the lives of the mother, father and children at that point in time motivated the paternal grandmother to seek leave to join in the proceedings. 

6. As a result of the intervener maternal aunt filing an Application in a Case some months later on 9 September 2010, the matter came back before the Court on 10 December 2010, at which time further interim parenting orders were made, this time with the consent of the parties.

7. The orders made on that occasion by the Court provided for the two youngest children to spend time with the intervener, and the eldest child to spend time with the mother, intervener and maternal grandmother subject to agreement between the parties and recommendations of that child’s treating psychologist.  The mother was to submit to monthly urinalysis, complete a drug rehabilitation course and attend upon a psychologist to formulate and implement a mental health care plan.  Regrettably, those orders were not successfully implemented.

8. The two youngest children spent time with the maternal aunt on only two occasions, after which time the maternal aunt could no longer commit to the visits. The eldest child did not spend any time with the mother or members of the maternal family. His psychologist recommends strongly against it. The mother failed to produce a single negative drug screen and has produced no evidence of her completion of a drug rehabilitation course or psychological therapy.

9. The parties and children conferred with a Family Consultant on 28 February 2011 and the Family Report was later released to the parties. 

10. On 27 April 2011, the matter was fixed for trial on 6 June 2011 and a series of procedural orders were made to ensure the readiness of the proceedings for trial. 

11. The father failed to appear or be represented before the Court on 10 December 2010 and 27 April 2011.  He attended Court on the morning of trial at around about 11.15 am, notwithstanding his filing of a Notice of Discontinuance on 20 May 2011.

12. In the Notice of Discontinuance the father makes reference to his purported discontinuance of an Application for final orders filed on 12 May 2011.  The file does not reveal any Application for final orders to have been filed on or about that date. The learned counsel for the paternal grandmother and the Independent Children's Lawyer confirm that they are unfamiliar with any such document.

13. Notwithstanding the apparently erroneous reference to his Application in the Notice of Discontinuance, questions posed by me to the father upon his belated arrival at Court lead me to conclude he does not wish to participate any further in the proceedings.  He conceded he did not intend to adduce any evidence in the case, he conceded he did not wish to ask any question of any other witness in the proceedings, and he conceded he intended to make no submission as to the outcome of the parenting proceedings.

14. The inference I would have otherwise been prepared to draw, namely, that he had intended to discontinue his participation in the proceedings, was confirmed by his admissions from the bar table. 

15. Similarly, the respondent mother filed a Notice of Discontinuance on 20 May 2011 – exactly the same date as the date upon which the father filed his Notice of Discontinuance.  Likewise, confusingly, the mother purports to discontinue an Application for final orders filed on 12 May 2011. Self-evidently, the respondent mother is not able to discontinue an Application since she could only ever file a Response.  As was the case with the father, the mother was asked questions upon her belated appearance at Court on the date of trial and she also confirmed she did not intend to adduce any evidence, ask any question of any other witness, or make any submission as to the outcome of these proceedings.  As did the father, the mother confirmed she intended to be a spectator rather than a participant in the litigation.

16. The intervener, who I have already recited is the maternal aunt of the children, also filed a Notice of Discontinuance on 2 June 2011 in which document she purported to discontinue an Application in a Case without identifying that document by the date of its filing. The intervener has only ever filed an Application in a Case in these proceedings on 9 September 2010 and the orders proposed in that document merged in entirety in the orders made by the Court on 10 December 2010. The intervener did not file any Response or affidavit in accordance with the procedural orders made by the Court on 27 April 2011. Like the mother and father, the intervener was aware of the trial date as it was disclosed on the face of her Notice of Discontinuance.  I infer that the intervener also wishes to no longer participate in the proceedings or be heard about the outcome of the proceedings.

Parenting proposals and evidence

1. The paternal grandmother presses for the orders set out in her Amended Response filed on 27 May 2011.

2. In essence, the paternal grandmother proposes that she have sole parental responsibility for the children, the children live with her, the children spend time with the father at times and under conditions determined by her as an incident of her sole parental responsibility, and an injunction be made precluding the parties from permitting the children to spend any time with the mother and maternal aunt.

3. In support of those orders, the paternal grandmother relied upon:

   a)Her affidavit filed on 26 May 2011;   

   b)The affidavit of Mr G, a psychologist who is treating the children, which affidavit was filed on 26 May 2011; and

   c)The two affidavits of the Family Consultant, Ms L, affirmed on 22 July 2010 and 16 March 2011.

4. The Independent Children's Lawyer supported the orders proposed by the paternal grandmother, which orders were consistent with the evidence of the Family Consultant and Mr G.

5. In addition, the Independent Children's Lawyer sought orders to the following effect: 

   a)The grant of leave for the Family Consultant’s affidavits to be released to the NSW Department of Family and Community Services for potential use in child welfare proceedings relating to the fourth child recently born to the mother, which proceedings have been commenced by the Department in the Children’s Court of NSW, and also to Mr G, the children’s psychologist; and

   b)The paternal grandmother ensures continuation of the children’s psychological therapy with Mr G. 

6. The paternal grandmother agreed to those two supplementary orders proposed by the Independent Children's Lawyer.

Applicable legal principles 

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (‘the Act’). The Act defines the meaning of a parenting order. When called upon to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which will properly be made.

2. When making parenting orders, the Court is mandated to regard the children’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the children.

3. The Court is required to apply a rebuttable presumption that is in the best interests of the children for the children’s parents to be allocated equal shared parental responsibility for them.

4. Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents.

5. The legislation dictates the manner in which parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the children and also in respect of decisions which do not relate to such major long-term issues.

6. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or in family violence, and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.

7. The legislation makes it clear the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the children should spend with each parent. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made then the Court’s discretion is at large in the determination of the parenting orders is warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. Those principles have been authoritatively examined by the Full Court in Goode & Goode (2006) FLC 93-286 and the High Court in MRR v GR (2010) 240 CLR 461.

Best interests of children 

1. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors apply to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421; Potts & Bims (2007) FamCA 394).

2. Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Aldridge & Keaton; Dennett & Norman (2007) FamCA 57). Although some of the factors prescribed for consideration under section 60CC(3) of the Act refer only to parents those factors, insofar as they concern grandparents, may still be considered under section 60CC(3)(m) of the Act and carry the same weight under whichever provision they are discussed (see Aldridge and Keaton).

3. Consequently, I will deal with the parents and paternal grandmother simultaneously under all of the relevant criteria set out within ss 60CC(3) and 60CC(4) of the Act.

Best interests – primary considerations

1. The first of the two primary considerations for which the Court must have regard in determining the children’s best interests is the benefit to the children of having meaningful relationships with both of their parents.

2. As I have already said, I will also consider these issues insofar as they pertain to the paternal grandmother at this point in time. All children have a very positive relationship with the paternal grandmother, such that the relationships could only possibly be described as meaningful. 

3. In her first involvement with the family in July 2010, the Family Consultant spoke with each of the three children.  The eldest child at that time told the family consultant that he feels safe with the paternal grandmother and that she cooks him nice food, gives him lunch to take to school,  and he has clean clothes – not grubby school clothes anymore (see First Report, page 5).

1. The Family Consultant again conferred with the parties and children in February 2011. During that series of interviews, the eldest child told the Family Consultant continually that he did not wish to return to the mother’s home. He was adamant that in order to remain safe he needed to remain with the paternal grandmother. The Family Consultant quotes the child as saying “I never want to go back [to the mother’s home]. I want to stay with Nan” (see Second Report, par 91). 

2. The children’s psychologist also offered some insight into the quality of the relationships between the children and the paternal grandmother. When Mr G asked the eldest child to draw a picture of his family the child drew the paternal grandmother, his sister, himself, his brother and his father - in that order. The eldest child did not include the mother in the family drawing.  When questioned about that the eldest child was adamant he did not want to include the mother in the drawing (see affidavit of Mr G, par 9).

3. Similarly, when consulting with the middle child, Mr G asked him to draw a picture of his family and the middle child drew the paternal grandmother, his brother, his sister, himself and his father - in that order.  Again the mother was not included in the family drawing. When questioned about that the middle child told Mr G he did not want to include the mother in the drawing (see affidavit of Mr G, par 19).

4. It is reasonably plain from those passages of evidence that the children do retain a meaningful relationship with the father but the quality of that relationship still does not appear to approach the superior quality of the relationship that the children each enjoy with the paternal grandmother. 

5. The Family Consultant observed the children together with the father in February 2011 and related her observations when the children were introduced to the father. The youngest child yelled “daddy” and ran to the father, the eldest child smiled at the father, and the middle child made a comment meant to ensure the mother would not be part of the observation session (see Second Report, par 131).

6. It is abundantly plain that the two boys do not have any meaningful relationship with the mother, regrettable though that conclusion is.

7. When initially interviewed by the Family Consultant in July 2010 the eldest child said to the family consultant “I never, ever, ever want to go back to live with her [the mother]” and a number of times he referred to the mother by her first name (see First report, page 5).

8. When interviewed subsequently by the Family Consultant in February 2011 the eldest child amplified those comments saying words to the effect of “I don’t love her”, although the eldest child did tell the Family Consultant he felt loved by the paternal grandmother and the father. The child remained adamant he did not want to spend any time with the maternal aunt. He did not feel safe with the maternal aunt and feared she might expose him to the mother.

9. Interestingly to the family consultant, every time the mother’s name was mentioned the eldest child’s eyes widened and his body stiffened. He would then shake his head saying “No. No. I don’t want to go with her.  I want to live with Nan so I can have a better life.”  The Family Consultant regarded the child’s views as developmentally appropriate, since his experience of the mother and the violence between his parents had taken its toll upon him physically, emotionally and psychologically. The Family Consultant considered the child was unable to sustain any further contact with the mother.  The eldest child impressed upon the Family Consultant that he had “better life” with the paternal grandmother and felt safe in her care.  He said “I want to stay with her forever.” 

10. The comments of the middle child to the Family Consultant were similar.  He made it clear to the Family Consultant he “hates” the mother.  As did the eldest child, the middle child referred to the mother by her christian name. In expectation that he might have to see the mother at the consultations in February 2011 the middle child told the Family Consultant “I hate her” and yelled “I don’t want to see her.”  It was only once the middle child realised he was safe and would not be exposed to the mother that day that he began to relax and become more interactive and receptive to the Family Consultant.  The middle child told the family consultant that he was aware the mother was coming to court to “get me back and she’s not getting me back. I hate [Ms Sturgess].”

11. The Family Consultant regarded those views as developmentally appropriate as a consequence of the middle child’s reported experience of the mother’s abusive behaviour.  She regarded the child as fearful of the mother, despite the child’s protestations to the contrary. The middle child told the Family Consultant he wanted the judge to know that “I won’t go back to her [the mother]” and that he wanted to remain living with the paternal grandmother.

12. The Family Consultant informed the Court that neither of the two boys were observed together with their mother that day due to their emotional states. 

13. Although that is the situation with respect to the two boys, it is not the same in respect of the youngest child, who does appear to retain a meaningful relationship with the mother. 

14. The youngest child, who is not yet three years of age, was not formally interviewed by the Family Consultant due to her young age and was instead observed in a number of settings to gauge her behaviour and development.

15. When the mother was introduced, the youngest child immediately stopped when she heard the mother’s voice and looked at her to process the identity of the person from whom she heard the voice. The Family Consultant reported that after the youngest child registered it was the mother she ran to the mother and hugged her. When it was later time for the mother to depart the youngest child appeared to separate happily from the mother without tears or fuss.

16. It is argued by the paternal grandmother and the Independent Children’s Lawyer that there is no longer any meaningful relationship to promote between the two boys and the mother.  That is a submission which is difficult to resist. 

17. Although it could cogently be said the youngest child would benefit from retaining her meaningful relationship with the mother, it is clear that such a benefit must yield to her physical and emotional protection. The evidence in relation to the need to protect the children from physical and emotional abuse should now be confronted.

18. There is little room for any conclusion other than that the children have been exposed to virulent family violence between the parents and also that the children have been physically abused by the mother. 

19. When initially consulted by the Family Consultant in July 2010 the eldest child told the Family Consultant the mother was “violent, very, very violent”. The eldest child told the Family Consultant of times where the mother had beaten him with a sword, causing him to be bruised.  He also reported the mother locking him in a room for hours on end in the dark until the father arrived home from work. The eldest child also described an incident where the middle child was crawling on the ground to his bedroom and the mother was holding on to the walls walking behind the child kicking him all the way to his room. The eldest child said that they were then both locked in the room, in the dark, for hours until the father came home.  The eldest child described how he had seen the mother violently attack the father, hitting and scratching him. On one of the occasions he saw such an assault the father was holding the youngest child in his arms.

20. The eldest child reported that the mother would “scream and scream and so Dad used to take us to Nan’s” – a reference to the paternal grandmother. 

21. The eldest child also discussed with the Family Consultant his absolute terror when witnessing the mother physically abuse the youngest child. He told the Family Consultant the mother would “strangle the youngest child like this”, and then demonstrated how the mother would put her hands around the youngest child’s throat and simultaneously shake her. He reported the mother holds the youngest child in the air by one arm and smacks her on the legs. 

22. The allegations of the eldest child were corroborated by comments made to the Family Consultant independently by the middle child. The middle child told the Family Consultant the mother “smacks me on my back, arms and legs.  It hurts and I cry.  I don’t want to live there”.  The middle child described to the Family Consultant the incident where the mother reportedly kicked him all the way to his room. He said “she was yelling and kicking me. Dad was at work. I was crying and she didn’t even care”.  The child reported he was bruised and that his skin was marked from where the mother had kicked him.

23. The middle child also told the Family Consultant that the mother “chokes the youngest child. She shook her and threw her on the floor”. The middle child told the Family Consultant he wanted to help his little sister “but I was too scared”. 

24. Such descriptions by such young children are a damning indictment of the care they were given in the household of the parents. Although none of that physical abuse is attributed by the children to the father, it is clear the father has been unable to protect the children from such abuse by the mother.

25. When he was interviewed by the family consultant in February 2011 the father told the Family Consultant that he has seen “a few smacks, pulling arms and she’d lose her temper with the youngest child”. The father said he did not see what else went on in the home because he was at work.

26. The father also told the Family Consultant there had been a long history of family violence, usually with the children present.  He alleged the mother was the main aggressor and that there were “more bad days than good”. The father said “I wasn’t enjoying going home. It wasn’t a nice place to be”. 

27. The Family Consultant read documents produced on subpoena for the purposes of compiling her Family Report.  She reported those documents disclosed that there appeared to have been some 19 reports to police of incidents of family violence and, for the most part, the children were present.  There were multiple police records of events where they were called to the home by the father as the mother was verbally abusive, irrational, swearing and screaming.  The police were led to question the mother’s mental health and her drug and alcohol dependence.

28. Records produced on subpoena by the NSW Department of Family and Community Services also highlighted a total of 31 reports about the family in the period between 2002 and 2009. Those reports identified the children being at risk of harm due to domestic violence, serious psychological harm, serious physical harm, physical abuse and ill-treatment and inadequate supervision.

29. For her part, when interviewed by the Family Consultant, the mother said there was never any arguing in front of the children because “the kids were asleep or in their rooms”. She said there was “never any hitting” between her and the father. She also said “the father threw something one time. It’s just all got blown out of proportion.” The contradiction between the mother’s trivialisation and a lengthy history of virulent family violence demonstrates either a degree of dishonesty or an alarming lack of insight on her part.

30. In response to the available evidence, the Family Consultant concluded (at par 176 of the Family Report) that it was a major concern the mother had denied she ever abused the children in any way. The Family Consultant went on to say (at par 177 of the Family Report) that the mother’s inability to acknowledge her reported behaviour, her lack of insight into the damage caused by the abuse inflicted upon the children, coupled with her appearing to have no empathy for the children and their experience of years of family violence, is alarming.

31. The mother’s lack of acknowledgement, insight and empathy leads the Family Consultant to believe the mother is a danger to the children. The danger, in the view of the Family Consultant, is not limited to the mother because it remained a major concern to the Family Consultant (at pars 55 and 56 of the Family Report) that:

    …the father has a repeated pattern of returning to the mother with the children in tow and exposing the children to further violence and abuse. It would appear that the father is unable to sever his relationship with the mother and presents as quite powerless in the relationship. 

32. The Family Consultant goes on to comment (at par 174 of the Family Report):

    It is a great concern that, whilst the father has, on many occasions, acted protectively in calling police and in taking the children to the home of the paternal grandmother, he has continually reconciled with the mother and, as a result, has contributed to the children’s trauma by exposing the children time and time again to damaging behaviour.

33. I accept that evidence of the Family Consultant, which was unchallenged. 

34. The threat to the welfare of the children extends to their proper physical care.  The available evidence suggests that they have also been neglected in the household of the mother and father. The Family Consultant comments (at par 183 of the Family Report):

    The children’s multiple diagnoses of PTSD, ODD, ADHD, reactive attachment disorder, mild global delays, speech disorders and eating disorders, coupled with tooth decay, are all recognised indicators that the children have, indeed, experienced significant trauma, abuse and neglect.

Best interests – additional considerations

1. In addressing the primary considerations under section 60CC, I have already touched upon the children’s views about the quality of their relationships with the mother, father and paternal grandmother. Despite their tender age, some weight must be attributed to those views because of the vehemence with which they are expressed and the Family Consultant’s opinion that their views are developmentally appropriate and reflective of their experiences with the parents.

2. The two youngest children have been living with the paternal grandmother since July of 2010. The eldest child has been with the paternal grandmother even longer, commencing his residence with her in December 2009. Any change of those existing residential circumstances would be an enormous wrench for the children.  I am led to conclude, on the available evidence, that it is an adjustment with which they could not cope.

3. I am satisfied that neither the mother nor the father has the capacity to provide for the children’s physical, emotional and intellectual needs. I have already made mention of the 31 reports made to the NSW Department of Family and Community Services in the period between 2002 and 2009. Self-evidently, those reports within that period pre-date the movement of the children into the residential care of the paternal grandmother.

4. The children have been very damaged by their experiences with the parents.  I am impelled to accept the Family Consultant’s opinion that the mother’s lack of acknowledgement, insight and empathy leads inexorably to the conclusion that the mother remains a danger to the children. I also accept the Family Consultant’s opinion (at par 182 of the Family Report) that the mother is unable to cope with stress, which causes her to be volatile and reactive.

5. The mother’s continuing use of illicit drugs remains an issue in the proceedings.  As I have already mentioned, the orders that were made by the Court on an interim basis in December 2010 required the mother to submit to monthly urinalysis, complete a drug rehabilitation course and attend upon a psychologist to formulate and implement a mental health care plan.

6. When consulting with the Family Consultant, the mother said she had “the occasional joint on New Year’s Eve and birthdays,” even though the father reported to the Family Consultant that the mother smoked cannabis “every second or third day.”

7. The mother also told the Family Consultant that she completed a drug and alcohol course because “The judge told me I had to do it.  I do not know why.”  The mother said she had undergone a single urinalysis, but that urinalysis is “not valid as it does not meet the standards”. I do not know what that means, but I draw the obvious inference that the single urinalysis result discussed by the mother with the Family Consultant did not disclose a negative outcome.

8. The mother also said to the Family Consultant that she had submitted to counselling in M Town on two occasions, but had not been able to find a counsellor on the central coast who will continue to consult with her, since she does not believe she has any mental health issues. 

9. The evidence I have just recited from the Family Report is evidence of what the mother has told the Family Consultant. No evidence, corroborative or otherwise, has been adduced to vindicate the mother’s position. In the absence of such evidence, I am mandated to infer that she has not complied with the interim orders made in December 2010 designed to ensure and maintain her abstinence from illicit drugs.

10. The attitude of the mother and father to the children and the responsibilities of parenthood is sadly lacking for the reasons already addressed.  There is no need to repeat myself. 

11. I have also already addressed the issue of family violence as a primary consideration under section 60CC(2) of the Act. There is currently no family violence order in existence in relation to the parties and the children. The paternal grandmother formerly had the protection of an apprehended domestic violence order, issued by police on her behalf against the mother. That order was made on a final basis by the Local Court of NSW at K Town on 21 May 2010. As would be evident from the date that order recently expired and, on the evidence, it was not extended or renewed.

12. As I have already mentioned, the children currently live with the paternal grandmother.  They spend no time with the mother, but spend regular time on most Sundays with the father at the home of the paternal grandmother. The mother concedes the children have not seen her since July 2010.  I remain perplexed as to why that is the case.  The apprehended violence order that was made against the mother in favour of the paternal grandmother in May 2010 included only the following conditions:

    1(a) The defendant (the mother) must not assault, molest, harass, threaten or otherwise interfere with the protected person (the paternal grandmother) or a person with whom the protected person has a domestic relationship.

    1(b) The defendant must not engage in any other conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship.

    1(c) The defendant must not stalk the protected person or a person with whom the protected person has a domestic relationship.

13. It would be obvious that the conditions of the apprehended violence order did not preclude the children from seeing the mother. 

14. The interim orders made by this Court on 26 July 2010 certainly did not preclude the children from seeing the mother either.  As was expressly noted on that occasion (Notation B):

    The absence of orders providing for the children to spend time and/or communicate with the parents is not intended to mean that they should not spend time and communicate with them.  The paucity of evidence concludes the court from making an informed decision about those issues on an urgent basis, and so those issues will be left to the parties to negotiate satisfactory arrangements. In the absence of compromise, a party will need to file an Application in a Case with supporting affidavit evidence in accordance with the Family Law Rules.

15. No Application in a Case was ever filed by the mother or any other party, other than the intervener whose Application in a Case I have already discussed. 

16. The interim orders which were later made by this Court with the consent of the parties on 10 December 2010 only placed conditions on the ability of the eldest child to spend time with the mother.

1. Notwithstanding the absence of any impediments, the mother reported to the Family Consultant in February 2011 (see par 33 of the Family Report) she had not spent time with the children since 26 July 2010. She also said “The judge did another shocker.  Now I can’t even communicate with my children.”

2. As would be evident from the reasons given so far, the orders that were made in December 2010 were orders made with the consent of the parties.  It was not a decision by the Court, other than to vindicate the consensus of the parties.  Furthermore, no order made by the court in December 2010 precluded the mother from spending time or communicating with the two youngest children The only impediment to her spending time with the eldest child was the prospect of the paternal grandmother not agreeing, or the child’s treating psychologist recommending against such interaction, and if the mother was dissatisfied with the fulfilment of those conditions she did not avail herself of the opportunity of filing any Application in a Case for a review of interim parenting orders.

Conclusions

1. The finding of family violence between the parents means the presumption of equal shared parental responsibility does not apply. The Court is at large in respect of the parenting orders that it makes, provided such orders reflect the children’s best interests conformably with the Act.

2. It is plain the children have each demonstrated varying degrees of improvement following their commencement of residence with the paternal grandmother.

3. The eldest child’s improvement has been significant. The Family Consultant conferred with the principal of the eldest child’s school.  The principal told the Family Consultant she had seen “incredible growth” with the eldest child. 

4. As for the middle child, he is still acting out, which behaviour has been observed by both teachers at his school and by the Family Consultant at the time of the interviews conducted in February 2011. However, the paternal grandmother has arranged for the middle child to undertake psychological therapy with Mr G, and the psychologist reports (at par 28 of the report annexed to his affidavit) that the paternal grandmother has been instrumental in instituting a number of professional supports for that child, including the psychological therapy with Mr G, referral to a paediatrician, which entails ongoing review at the K Town Hospital, and educational assessment and support for the child at his school by the school counsellor.

5. The youngest child has been thriving with the paternal grandmother. As reported by the Family Consultant (at par 123 of the Family Report), when the youngest child first came into the paternal grandmother’s care she was:

   …a very fragile, small and thin child, weighing only eight kilograms, who was struggling developmentally.

6. Her weight at that time, as a two year old female, should have been closer to 12 kilograms.  Mr G reports (at par 35 of his report annexed to his affidavit) that at his last session with the youngest child she had gained a significant amount of weight, looked healthier and was better able to regulate her emotions and be soothed by the paternal grandmother, was better able to engage in self-directed play, was better at listening to and following instructions and was slightly less jittery.

7. The youngest child’s behaviour has certainly improved. The director of the preschool attended by the youngest child reported to the Family Consultant that when the youngest child first commenced at the centre she was hitting and pushing other children and that the behaviour was “more than normal acting out”. That is no longer the case. The youngest child is now also meeting her milestones more satisfactorily. The preschool director reported to the Family Consultant that the youngest child’s speech has improved, as has her behaviour, and she is now beginning to reach age-appropriate milestones.

8. The director of the preschool also reported to the Family Consultant that although the youngest child initially had trouble separating from the paternal grandmother that is no longer a difficulty.  The youngest child’s confidence has increased and she is enjoying peer associations with other members of her class.

9. The Family Consultant described the paternal grandmother’s household as a “reparative environment”. The evidence leads to the conclusion that the children must continue their residence with the paternal grandmother. 

10. Although the Family Consultant contemplates the prospect of parental responsibility for the children being shared between the paternal grandmother and the father (see par 189 of the Family Report), I accept the submissions of the paternal grandmother and the Independent Children’s Lawyer to the effect that the paternal grandmother should have sole parental responsibility for the children.

11. The paternal grandmother has been making decisions relating to the major long-term issues in the children’s lives for nearly 12 months now in accordance with the interim orders made on 26 July 2010.  No evidence has been adduced, and no submission made, that the paternal grandmother has not been carrying that responsibility satisfactorily. 

12. In my view there is no option but to order that the children live with the paternal grandmother and that the paternal grandmother have sole parental responsibility for them.

13. There is clearly a need for the children to retain their relationship with the father.  The family consultant said (at par 195 of the Family Report):

    It is essential that the children retain their relationship with the father not only for identity purposes but if the paternal grandmother were to become unwell or incapacitated where she could no longer care for the children the father may then need to assume care of the children if assessed as being appropriate protective parent [sic].

14. The Family Consultant said (at par 194 of the Family Report) that the time spent by the children with the father must be supervised at the home of the paternal grandmother. It was her view that the children love the father and were not scared of him, as he had never physically abused them and they appeared to enjoy spending time with him.

15. In my view the submission made by the paternal grandmother and Independent Children’s Lawyer is efficacious in that the time spent by the children with the father should be dictated by the paternal grandmother as an incident of her sole parental responsibility for the children. 

16. Both the paternal grandmother and the Independent Children’s Lawyer propose a different style of order in respect of the interaction between the children and the mother. Rather than leave that interaction up to the discretion of the paternal grandmother, they each propose an injunction restraining the children from spending time with the mother.

17. Such a proposal is consistent with the evidence of the Family Consultant who said (at par 190 of the Family Report):

    The family consultant’s view of the children spending significant time and communicating with the mother is this should not happen due to the psychological damage inflicted upon the children by the mother and their exposure to family violence.  It is evident that the children could not sustain a relationship with the mother.  The children’s multiple diagnoses support this view.

18. The proposal concerning the mother is also consistent with the evidence of the psychologist treating the children, Mr G, who opines that there ought to be no interaction between the children and the mother until a variety of remedial conditions have been fulfilled. 

19. The Family Consultant is of the view that written communication between the children and the mother is still possible, saying (at par 199 of the Family Report):

    It is recommended that the mother continue to forward written communication and presents on birthdays and at Christmas to the children.

20. Neither the paternal grandmother nor the Independent Children’s Lawyer seek to prevent such communication and, in fact, each proposed that such communication occur. 

21. An order is made restraining the parties from causing or permitting the children to spend time with the mother in accordance with those submissions and evidence.

22. A similar injunctive order is made restraining the children from interacting with the intervener, in accordance with the paternal grandmother’s proposal to that effect.  There is no evidence of any close relationship between the children and the intervener and the eldest child actually said to the Family Consultant (at par 96 of the Family Report) that he was adamant he did not want to spend time with the maternal aunt. He did not feel safe with the maternal aunt and was fearful that she might expose him to the mother.

23. The Family Consultant was somewhat equivocal about interaction between the children and the maternal aunt (see pars 201 – 203 of the Family Report).  Whether or not the Family Consultant recommended such interaction depended entirely upon findings of fact made by the Court.  In my view, the evidence that has been adduced does not permit the making of factual findings of the type envisaged by the Family Consultant. Nonetheless, there is evidence of a lack of insight on the part of the intervener, as pointed out by learned counsel for the paternal grandmother. 

24. The Family Consultant reports (at par 80 of the Family Report) that the intervener said she did not believe the mother was abusive to the children. She was of the view the mother was a victim of family violence. Whilst such a perception may be honestly held by the intervener, such a perception is obviously repugnant to the weight of the evidence about the family violence perpetrated by the mother and her physical and emotional abuse of the children.  If those views expressed by the intervener to the Family Consultant are genuinely indicative of the views held by her then I have concerns about her acting proactively to protect the children from the mother in the future. 

25. There is always a risk, as pointed out by counsel for the paternal grandmother and the Independent Children’s Lawyer, of members of the maternal family exerting undue pressure upon the paternal grandmother to permit interaction between the children and members of the maternal family in the absence of an injunctive order. 

26. For those reasons, I am persuaded to make the injunctive order proposed by the paternal grandmother. Of course, if the mother is able to rehabilitate herself at some point in the future it may be possible to revise the situation with respect to the interaction between the children, the mother and other members of the maternal family, but having regard to the evidence presently available that prospect seems some way off.

27. I agree with the Family Consultant’s view (at par 207 of the Family Report) that the Independent Children’s Lawyer should explain the orders to the children.

28. I also accept the submission of the Independent Children’s Lawyer, consistent with the opinion of the Family Consultant (at par 211 of the Family Report) that leave should be granted for release of the Family Consultant’s reports to the NSW Department of Family and Community Services and the psychologist, Mr G.

29. I accept that the psychological therapy of the children should continue with Mr G for as long as that psychologist deems necessary. The paternal grandmother should also ensure that the children avail themselves of the therapy proposed by the Family Consultant (at par 205 of the Family Report). 

30. For those reasons, the orders I am about to announce, in my view, meet the best interests of the children.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Austin delivered on 6 June 2011.

Associate:

Date:  9 May 2012