Carden & Hilliard & Anor

[2014] FamCA 438

FAMILY COURT OF AUSTRALIA

CARDEN & HILLIARD AND ANOR [2014] FamCA 438

FAMILY LAW – CHILDREN – Family Violence – Where issue as to whether the mother presents as an unacceptable  risk of harm to the children – Where alleged the mother posed three risks to the children those being a risk of physical abuse, sexual abuse and neglect – Where court not satisfied the mother presents a risk of harm to the children by way of physical abuse alleged – Where court not persuaded the children are at an unacceptable risk of physical or sexual abuse as alleged whilst in the mother’s care – Where court satisfied there is some risk of physical harm to the children in the mother’s care in the event that she is intoxicated – Where issue as to whether the father presents as an unacceptable risk of harm to the children – Where father has a long history of serious criminal history and violence – Where alleged the father posed an emotional risk to the children as a result of the children witnessing family violence and the prospect of the father coaching them to make further allegations against the mother – Where children have been exposed to the father’s violent behaviours – Where father obsessed with the notion that the children have been burnt and sexually abused whilst in the mother’s care – where father over many years has taken the children to medical practitioners with a view of having them accept that the mother has burnt the children with cigarette butts – Where material supports the father has been deliberately coaching the children with a view of them appearing to make disclosures of being burnt or sexually abused – Where father handed out a pamphlet publicly alleging they had suffered abuse at the hands of the mother – Where court of the view that there is a lack of emotional separation between the parties – Where court of the view the father is likely to continue to use the children as a means of exerting control or trying to exert control over the mother – Where court satisfied the father represents an emotional risk of harm to the children.

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – Family violence – Cultural issues – Where children have principally resided with mother since birth – Where competing proposals between mother and paternal grandmother for residence – Where court noted that 60CC factors are specific to parents in relation to determining where the best interests of children lie – Where court noted 60CC factors still have a role to play where cases do not involve parents as active protagonists – Where father incarcerated from time to time – Where concern about the mother’s capacity to care for the children in relation to her abuse of alcohol is adverse to the mother – Where father has very limited capacity to provide for the children particularly on an emotional level – Where paternal grandmother presents as the best role model for the children and has the best capacity to provide for their needs – Where court concerned about the extent to which the paternal grandmother can keep the father from being the primary carer of the children – Where court concerned about the paternal grandmother’s ability to facilitate a good relationship between the boys and the mother – Where children of and have been raised in a mix of Aboriginal and South Sea Islander culture – Where court satisfied the mother, father and paternal grandmother are largely indistinguishable in their ability to encourage both children to enjoy all aspects of their culture – Where court satisfied that it is in the best interests of the children to remain living with the mother.

FAMILY LAW – CHILDREN – With whom a child spends time – Where court found it in the best interests of the children that time to be spent with the father must be supervised – Where father poses a risk of emotional harm to the children.

FAMILY LAW – CHILDREN – Parental Responsibility – Where not feasible to contemplate orders for shared parental responsibility –Where no history of amicable communication or co-operative decision making between any of the parties – Where court ordered paternal grandmother to have parental responsibility in relation to education – Where mother does not have any great familiarity or experience in education – Where court of the view the paternal grandmother would make better decisions in relation to the children’s education.

Evidence Act (Cth) s140

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 61F, 65DAA

In the Marriage of Toben (1999) 24 FamLR 635
Nineth v Nineth (No.2) [2010] FamCA 1144
Donnell v Dovey (2010) FLC 93-428
Davis v Davis (2008) 38 Fam LR 671
Re CP (1997) 27 Fam LR 486
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Re K v R (1997) 22 Fam LR 592
R W (Sex Abuse – Standard of Proof) [2004] FamCA 768
Carlson v Bowden (2009) Fam LR 327

APPLICANT: Ms Carden

RESPONDENT: Mr Hilliard

INTERVENOR: Ms Hilliard

INDEPENDENT CHILDREN’S LAWYER: Mr Purcell

FILE NUMBER: TVC971 of 2007

DATE DELIVERED: 23 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 19, 20, 21 and 22 February 2013; 11, 12, 15 and 17 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Pack

SOLICITORS FOR THE APPLICANT: Queensland Indigenous Family Violence Legal Service

THE RESPONDENT: In Person

SOLICITORS FOR THE INTERVENOR:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITORS FOR THE INDEPENDENT
CHILDRENS LAWYER:

Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd

Mr Fellows

Purcell Taylor Lawyers

Orders

Parental responsibility

1. All previous parenting Orders be discharged.

2. Save as provided in Orders 3 and 4, the mother has sole responsibility for all major long-term issues concerning L born … 2005 and D born … 2007, (“the children”).

3. Notwithstanding Order 2, the mother shall not be permitted to relocate the residence of the children away from the area of Town R/Town A and Town DD without the prior agreement of the paternal grandmother or Order of a Court first obtained.

4. Notwithstanding Order 2, the paternal grandmother has sole responsibility for decisions concerning the education (both current and future) for the children.

5. Both the mother and the paternal grandmother shall consult with the other concerning any decision either proposes to make in respect of the children’s health (in the case of the mother) or education (in the case of the paternal grandmother) by:

   (a)informing the other of any such proposed decision not less than 14 days before the decision is to be implemented;

   (b)inviting the other to provide her advice or comments in respect of such proposed decision; and

   (c)giving reasonable regard to any advice or comments made by the other; and

   (d)thereafter informing the other of the decision she will then make.

6. For the purpose of giving practical effect of Orders 2, 4 and 5 this Order shall operate an as authority:

   (a)to any medical or allied health professional with whom the children or either of them may be involved in treatment or consultation to provide reasonable information to the paternal grandmother concerning such treatment or consultation; and

   (b)to the school attended by the children to provide to the mother copies of school reports concerning the children.

With whom the children live

1. The children live with the mother

With whom the children spend time and communicate

1. The children shall spend supervised time with the father as may be facilitated by Relationships Australia at Town DD and for that purpose both the father and mother shall promptly complete any intake requirements of Relationships Australia at Town DD.

2. The father shall not otherwise spend time with or communicate with the children.

3. Provided that the father is not living at the home of the paternal grandmother, the children shall spend time and communicate with the paternal grandmother as may be agreed between the mother and paternal grandmother and failing agreement:

   If the paternal grandmother lives in Town R

   (a)during school terms, on Tuesday from after school until 7:00pm;

   (b)on the first and third weekend of every month, from 9:00am Saturday until 5:00pm Saturday;

   (c)on the paternal grandmother’s birthday if a school day, from 4:00pm until 7:00pm and if on a weekend from 9:00am until 5:00pm on that day;

   (d)on the children’s birthdays if a school day, from 4:00pm until 6:00pm and if on a weekend from 9:00am until 1:00pm on that day;

   (e)each Christmas holidays for the first two weeks in January, commencing on 9:00am on the first Saturday in January, and concluding at 5:00pm on the third Sunday in January.

   If the paternal grandmother remains living in Town DD

   (f)each alternate weekend from 9:00am until 5:00pm on Saturday;

   (g)each Wednesday night by telephone between 6:30pm until 7:00pm;

   (h)on the paternal grandmother’s birthday if on a weekend from 9:00am until 5:00pm on that day and if a weekday by telephone commencing at 6:30pm;

   (i)on the children’s birthdays by telephone commencing at 6:30pm;

   (j)each Christmas holidays for two weeks in January, commencing on 9:00am on the first Saturday in January, and concluding at 5:00pm on the third Sunday in January.

Practical arrangements

1. The mother, the father and the paternal grandmother shall keep each other promptly advised of the place where they live, their email address (if any) and of a telephone number where they may be contacted.

2. The Independent Children's Lawyer is forthwith discharged with the thanks of the Court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

3. Otherwise all extant Applications be dismissed and the matter be removed from the list of active pending cases.           

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carden & Hilliard 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

FILE NUMBER:

Ms Carden

Applicant

And

Mr Hilliard

Respondent

And

Ms Hilliard
Intervenor

REASONS FOR JUDGMENT

INTRODUCTION

1. These proceedings relate to the parenting arrangements for two children, L (born in 2005, and presently 9 years of age) and D (born in 2007, and presently 7 years of age).  Both children have Aboriginal and South Sea Islander cultural heritage.

2. When the trial initially commenced before me in February 2013, the parties to the proceedings were the mother and the father, however it became apparent at an early stage that the orders which the father would ultimately press me to make were not that the children live with him, but rather that they live with his mother.  Leave was therefore given for the paternal grandmother, Ms Hilliard to intervene, and she did so.  In consequence, a further Family Report was obtained, and the hearing resumed on 11 April 2013. 

3. In broad terms, the mother and the Independent Children's Lawyer seek orders that the children live with the mother, spend supervised time with the father, and spend unsupervised time with the paternal grandmother on occasions when the father is not living with her.

4. On the other hand the father and the paternal grandmother both seek orders that the children live with the paternal grandmother, and spend supervised time with the mother.

OUTCOME

1. For the reasons which follow, I have determined that there should be orders in the terms sought by the Independent Children's Lawyer.

BACKGROUND FACTS

The paternal grandmother

1. The paternal grandmother is of Aboriginal and South Sea Islander descent.  She says that she has been recognised as a … Elder in the … Nation by the … Elders and is recognised as a Leader and Elder in the Aboriginal South Sea Islander community.  She was born in 1945 and is presently 68 years of age.  For most of her life she has lived in Town R.  In that community, she and her late husband were referred to by the local Indigenous and South Sea Islander community members as “…” and “…”.  These terms reflected their perceived roles within the community, and had cultural significance, in that they signified that both played the role of care-giver, provider, protector and supportive counsel in raising and assisting children from other families.[1] 

   [1]Paternal grandmother’s affidavit filed 4 March 2013 para 3.

2. Both the paternal grandmother and her late husband had extensive involvement in the Indigenous and South Sea Islander Community in Town R, and with European children as well.  That included being involved in the launch of a playgroup, the formation and staffing of youth services in an effort to control youth vandalism and, in the case of the paternal grandmother, employment by a government agency for more than 15 years in an education role.[2]  Further, the paternal grandmother has served for 10 years as a counsellor with the local council and has been actively involved, both in that role and beyond it, as an advocate for a range of indigenous youth and cultural activities.[3]

   [2]Paternal grandmother’s affidavit filed 4 March 2013 para 4.

   [3]Paternal grandmother’s affidavit filed 4 March 2013 para 6.

3. The paternal grandmother has five children, of which the father is the fourth.  She also adopted another child.  It is plain that children, their raising and their nurture, is a matter very dear to her heart, and one to which she has devoted her life and will no doubt continue so to do.

4. The paternal grandmother does have some health issues.  In the past, she has had some mobility problems.  In her evidence before me she acknowledged that in the past she had problems with her knees, however had recently stopped using a walking stick, and on the recommendation of her physiotherapist, was instead exercising and managing her weight.  She said she had taken no pain killers since October 2012.  She also has a history of congestive cardiac failure, however her general practitioner, Dr B[4] reported that “her heart failure is currently well controlled.  She has no medical conditions which would prevent her from caring for children.”

   [4]Annexure B to the paternal grandmother’s affidavit file 4 March 2013.

5. In her evidence before me she acknowledged that she had not been willing to join in these proceedings in the early years of them, and said that she had been “struggling [with becoming involved in them] for a couple of years.”  Ultimately she became motivated to join in the proceedings by an example that had come to her attention of another grandmother who had taken grandchildren into her care, in consequence of which their lives had turned around.  She described that, and in a sense what she is proposing to do here, as a form of divine intervention.  She particularly saw that she had valuable experience in education and could bring that to bear for the benefit of the boys the subject of these proceedings. 

6. In anticipation of orders being made in her favour, by the time of trial, she had resigned from her employment so as she could become a fulltime carer.  Up until then, it had been her intention to work until 75 years of age.

7. At the time of the trial the paternal grandmother was living in a unit in Town DD with the father.  It appears that he had been living with her since his release from jail in 2012.  In her evidence, she said that her intention was to stay living in Town DD notwithstanding that she still owned a house in Town R.  The reasons for that related to an alleged home invasion which had occurred in January 2013, during the course of which two men had entered the home and gone on what appears to be something of a rampage, smashing chattels within the home.  The father was present during this event, and asserts that the perpetrators were his cousins, a Mr C and his brother Mr E.[5]   I will discuss Mr C and his relationship with the mother in greater detail in due course, however based upon that event, the paternal grandmother expressed fear at returning to the Town R community to live.

   [5]The father’s statement to police was exhibit 7.

8. She acknowledged that her present unit was unsuitable to house herself and the two boys, and that she would need to find something larger.  She was interested in obtaining something closer to whichever school the children attended in Townach DD.  In that regard she had identified two good schools, one of which had what she described as an excellent indigenous program, with about 200 indigenous children attending.  The school principal was a friend of hers.

The father

1. The father was born in 1971, and is presently 42 years of age.  Unfortunately he has a long history of serious criminal convictions, and has been frequently incarcerated in consequence.  In her Family Report of 31 January 2013, Ms F helpfully summarised those as follows:[6]

   [The father’s] criminal history consists of two rape charges arising from the same event (sentenced 1996).  He has also been convicted for assault occasioning bodily harm (sentenced 2008 and 2012), common assault (sentenced 2009), assault (sentenced 2010 and 2008), breach of domestic and family violence orders (sentenced 2008, 2009, (twice), 2010 (three times)) and was sentenced for wilful damage in 2010 and 2012.

   [6]Para 119.

2. This history is, of course, highly disturbing and commenced when the father was 25 years of age.

3. Although both to the Family Report writer and in evidence before me, the father asserted that he would be “appealing against all sentences” that was plainly nonsense, at least from a practical perspective.  Indeed on 9 June 2010, the father filed an application for an extension of time within which to appeal against his 1996 rape conviction.  That application was dismissed by the Court of Appeal in September of that year (the reasons are contained in the Queensland Court of Appeal judgment which reasons were exhibit 15 in the trial before me).  Those reasons disclosed that the facts of his offence involved him driving a car, in which there were another four men and a woman whom the party had offered to give a lift home, to an isolated place where he and his co-offenders committed various sexual offences against her, including rape by Mr Hilliard and one of his co-accused.  The father made full and detailed admissions to police, and he was identified by the complainant from a photo board.  Further, the father was apprehended by police on the night in question refuelling the motor vehicle that had been used in the offence.  Unsurprisingly he pleaded guilty to the offence, but in any appeal he intended to raise, it seems, improper pressure being placed upon him both by police and his own barrister to plead guilty.  The Court of Appeal noted “these proposed grounds of appeal are, to say the least, most unpromising even before considering the 14 year delay in bringing this application.”  Unsurprisingly, the Court of Appeal concluded that the application to extend time to appeal against the conviction “has no prospects of success”.

4. As at the time of the trial before me, the father had only relatively recently been released from custody in 2012.  As shall be seen, a feature of the trial were some recordings made of his telephone communication with both children whilst he was incarcerated.

5. To the extent that the father has an employment history, it related to him operating a construction vehicle which was owned by his late father, although apparently not in recent times.

The mother

1. The mother was born in 1980, and is presently 33 years of age.  She is of Aboriginal, South Sea Islander and European descent.  She is the youngest of her parent’s five children, although her mother also raised her sister’s child.  The mother’s parents separated when she was a baby, however it appears as though the mother and her father nonetheless established a strong relationship.  There appears to have been very limited exposure of the mother to domestic violence during her childhood.  It does not appear that she has ever been in employment.

1. The mother has three older children to an earlier relationship, being G, H and J.  They were residing with her until she commenced a relationship with the father; it appears they then went to live with the maternal grandmother in Town R.

2. In the first Family Report, Ms F recorded[7]:

   [The mother] advised her three older children .. were living with her until “[the father] started belting me.  I said I did not want the kids to see me flogged around.  [The father] is very jealous of [H]; the child looks like his father, [Mr K].  [Mr K] is still in the children’s life.”

   [7]Para 45.

3. The mother has an extensive history, with the Queensland Police Service.  Ms F summarised the mother’s criminal history as follows:[8]

   Examination of subpoenaed material indicates that between 1996 and 2008 [the mother] was convicted for driving under the influence of alcohol (DUI) on six occasions.  Her blood alcohol content was 0.153 (1996), 0.177 (2006), 0.22 (2007), 0.16 (August 2007), 0.266 (2007) and 0.242 (2008).  The 2007 and 2008 offences occurred whilst [the mother] was disqualified from driving.  In 1996 and 2007 [the mother] was convicted for driving unlicensed.  She was fined in 2006 for driving with an expired licence.  On two occasions in 2007 [the mother] was convicted for driving an unregistered vehicle.  The writer notes that the August 2007 driving offence (BAC .16, driving whilst disqualified) occurred when [the mother] was conveying [D] to hospital for medical treatment.  The police subsequently conveyed mother and child to hospital.  Hospital staff reported the incident to Child Safety.

   [8]Para 117 of her Report 31 January 2013.

4. The Family Report continues at para 118:

   QPS records indicate that in 2007 [the mother] was convicted for breaching a domestic and family violence order and assault occasioning bodily harm.  In 2009 [the mother] was convicted for breaching a probation order.

5. The mother has also had extensive involvement with the Queensland Department of Communities, Child Safety and Disability Services, which holds a number of records relating to the mother.  In Departmental notes created 26 September 2010, it is stated “current information suggests the mother has suffered mental and emotional trauma but it appears she is currently managing this with medication…”  The records also show that an Intervention Order with Parental Agreement has been entered into between the Department and the mother on two occasions.

6. At paras 125 and 126 of her Family Report of 31 January 2013, Ms F summarised the Queensland Health records in relation to the mother as follows:

   Examination of [the mother’s] file revealed prior to her relationship with [the father] she accessed treatment for an alleged rape (1994), treatment for injuries following an incident of domestic violence (1998) and in 2000 she sought treatment for self-inflicted laceration to right arm.  File notes indicate [the mother] was unable to attend the hospital immediately following the incident due to the consumption of alcohol and serepax.  In March 2001 [the mother] was diagnosed with “acute alcoholism and parasuicidal”; at the time she reported stress due to her ex-partner and resurfacing of post traumatic experiences.

   Since entering a relationship with [the father], [the mother] has accessed treatment for a swelling to her cheek and reported she had been kicked in the abdomen (2005); head injuries (2007) allegedly caused by [the father] and in 2009 for major depression.  The depression was attributed to family/social crisis.

The parties’ relationship

1. The parties commenced their relationship in 2004, which is said to have ended in 2008.  They never lived together.  The relationship was marred by extensive violence.  At para 46 of the first Family Report Ms F noted:

   46. When reflecting on her relationship with [the father], [the mother] spoke of “the father beating me, drop kicking me, booting when pregnant; during both pregnancies.  The last one [pregnancy] was the worst.  The day I went into labour, he flogged me with a vacuum cleaner..”

2. In her affidavit filed 14 January 2013, the mother detailed some of the history of domestic violence.  At para 12 she said:

   Annexed to this affidavit and marked with the letters “DC1” is a true copy (of) the domestic violence orders that have been taken out by police on my behalf, against the respondent.  The first domestic violence order was taken out by the police.  I was 38 weeks pregnant with [L] when the respondent punched me and pushed me down the stairs.  This order was breached by the respondent when he again assaulted me, verbally abused me, and stalked me.  The respondent assaulted me again then I was five months pregnant with [D].  This time the respondent punched me in the face, and when I fell to the ground he kicked me in the face and back.  I was unconscious after this assault and taken to the hospital by ambulance.  As a result of the assault I was left with a fractured cheekbone and eye socket, massive bruising and abrasions.

3. The mother also called evidence in relation to the father’s violence towards her from her sister Ms I.  Annexure 1 to her affidavit are some photographs she took of the mother after an assault in 2006.  They show extensive swelling and some cuts in the area of the mother’s mouth and lips.  Ms I also gave evidence about other assaults on the mother that she has either seen, or seen the consequences of.

4. An examination of the domestic orders made against the father reveal that they have been many in number, including over most of the years during which the parties were in their relationship.  The father has been convicted of breaching those Domestic Violence Orders on nine occasions.

Post separation

1. After separation, on dates which are unclear, the mother and Mr C were in what is described by the mother as “a de facto relationship”.  As at 31 January 2013, the mother told Ms F that she and Mr C had been separated for “four months”.  There is room for real doubt as to whether or not the mother has concluded her relationship with Mr C.  Although she said that he remained a friend of hers, in her cross-examination, Ms F disclosed that the children had told her (although precisely when is unclear) that Mr C was still a regular visitor to their home, and would stay overnight.  Her impression was that he was still coming to the house, and more frequently than the mother was conceding.

2. In her evidence, the mother described Mr C as “loving and caring”.  She appeared to deny that he had been violent towards her, or at least that is the impression that I obtained.  However an examination of the documentary evidence makes it plain that Mr C is a violent man.  Part of exhibit 2 was Mr C’s criminal record.  It extends to two pages, and includes a conviction for attempted rape in 1994, for which he received a term of imprisonment for three years, and an assault occasioning bodily harm for which he was convicted in the Magistrates Court in April 2010.  He also has several convictions for drug related offences. 

3. Also within exhibit 2 is a police report of an assault on the mother by Mr C in August 2011.  According to what the mother told police on that occasion, Mr C grabbed her by the ear and said that he was going to cut her nipples off.  She then attempted to escape but in the course of doing so, Mr C threw her onto the ground, ripping her shirt.  He then sat on her and started strangling her with his left arm (he only has one arm).  In the course of trying to escape from being choked, the mother punched Mr C in the mouth, in consequence of which she was able to escape and run away, however he then grabbed her by the shirt and again threw her to the ground, and put his arm on her neck, seemingly in a further attempt to choke her. 

4. Also in the material in exhibit 2 is reference to an earlier event in November 2009 in which it appears as though there was a minor assault between Mr C and his older brother.  Further, there are the events of January 2013 in which Mr C and his younger brother apparently assaulted the father and damaged property of the paternal grandmother.  On the following day, the paternal grandmother was threatened by Mr C when she travelled to her home at Town R to inspect the damage caused in the home invasion.  In the course of an obviously unpleasant confrontation between the paternal grandmother and Mr C and Mr E, Mr C “poked his stick in her face and said “you big fat fucking cunt, you’re dead.  There is a hit on you, you’re dead.””  The stick in question was described by the father as being like the leg of a table.

5. Part of the reason for the poor relationship between the father and Mr C may stem from the fact that they are related, and used to be friends.  As I will discuss later, it appears as though the father is very jealous of the mother’s relationships, both those before his relationship with the mother, and subsequently.  

6. Notwithstanding the parties asserted separation in 2008, on 31 October 2012, the father reported to the Family Report writer that he and the mother had resumed sexual intimacy.  The following week she was advised that the parties had “reconciled”.  The parties even planned to marry.[9]  The mother later told Ms F that they again “separated” on 19 November 2012 due to “it was said, ongoing domestic violence” perpetrated by the father.  Amongst the bundle of domestic violence orders that were annexed to the mother’s affidavit filed 14 January 2013, was her application for a protection order after the parties had separated in November 2012.  Her explanation is in the following terms:

   We attempted reconciliation, as I believed, foolishly as it turned out, that he had changed and we would have some chance of being a family with our two children.  This was very short lived, and he began to smoke drugs in front of our kids.  His behaviour became erratic, and I told him I would not tolerate him doing drugs in front of our kids.  He threw a cup at me, and again started up on the things he thought I was doing wrong.  I realised that this was not working and he hasn’t changed, and it was over.

   [9]Exhibit 26, p3.

7. Later in her application she went on to explain that in December 2012, the father was stalking her, or at least had her house under observation, and then later, when she advised him that she had miscarried what would have been their third child, there was an unpleasant telephone conversation.  Then on December 29 the father said to both her and the two children “it won’t be long now, daddy will have you, and that [the mother] had only two days to live, that he would roll me out of this world before the Family Court date [being 18 January 2013].”  Later that day it appears as though he repeated the threat to members of the mother’s family.

The children

1. Both children have mainly resided with the mother since their birth, save for occasions when they have been left in the care of other family members in consequence of the mother either being, or planning to become, intoxicated. 

2. There is not a great deal of material as to the children’s academic achievements, although exhibit 25 contained a series of certificates in relation to the children.  From these it appears as though both children are performing reasonably well at least in some areas of their schooling.

Current orders

1. The most recent orders relating to the children were made by Murphy J on 21 March 2012, which orders, on an interim basis, gave the mother sole parental responsibility for the children’s long-term care welfare and development, and ordered that they live with her.  The time that the father was to spend with the children differed upon whether he was incarcerated or not.  In the event that he remained incarcerated, the children were to visit him once per fortnight at the prison.  Upon release, the children were to spend time with him each alternate Saturday between 9:00am and 3:00pm for three months, at the conclusion of which, providing that the father had suitable accommodation in Town R, the children were to spend each alternate weekend with him from 9:00am Saturday to 3:00pm Sunday.  There were orders in relation to time being spent with the father on special events, and for telephone communication on various days.

2. However in fact the father has not, since his release from prison, spent time with the children pursuant to the orders, as the children have been withheld by the mother.  She has done so for reasons which I will detail and discuss later in these reasons, but in substance, because she says that the children are not safe in the father’s unsupervised care.

THE PARTIES’ PROPOSALS

1. Although by her Initiating Application filed 22 July 2009, the mother sought orders that the children live with her, that she have sole parental responsibility for them, and that the father “spend time and communicate with the children as agreed with the mother”, by the time of the trial she was seeking that the father’s time with the children only be supervised.  She also appeared to accept that there should be an order for the children to spend time with the paternal grandmother.

2. The father’s position was less clearly defined.  In his Response filed 25 August 2009, the father said that he did “not agree with the mother having sole parental responsibility” but otherwise did not specify any actual orders that he sought due to “Child Safety Services” reviewing the case of the children living with the mother, and “the fact of questionable parenting skills which are under review and specific governmental institutions.”

3. Ultimately in the course of submissions, the father’s position was that the children should live the paternal grandmother, that she should have sole parental responsibility for them, and that the mother’s time – if any – with the children, should be supervised at a contact centre, because of the unacceptable risk of physical and sexual abuse which she, or those associated with her, were said to pose to the children.

4. By her Amended Initiating Application filed 22 March 2013, the paternal grandmother sought orders that the children live with her, that she have sole parental responsibility for them, that they spend supervised time with the mother, but unsupervised time with the father, and that there be orders permitting both the mother and father to have telephone communication with the children on occasions.

5. Ultimately at the conclusion of the trial, the orders sought by the Independent Children's Lawyer were that the mother should have sole parental responsibility for the children save in relation to matters of education (the responsibility for which should rest with the paternal grandmother, albeit with an obligation to consult with the mother) and that the children live with the mother and spend supervised time with the father at the M Contact Centre.  The orders also contemplated that the children would spend unsupervised time with the paternal grandmother, although the time and circumstances in which they would spend time with her varied depending upon whether she lived in Town R or Town DD.  If living in Town R, then they would spend one or two school day afternoons every week with her until 7:00pm, one or two Saturdays per month with her, two weeks of the Christmas school holidays, and time on both the children’s birthdays and the paternal grandmother’s birthday.  In the event that the paternal grandmother was living in Town DD, then the Independent Children's Lawyer proposed that the children would spend time with the paternal grandmother each alternate Saturday, and have telephone communication on every Wednesday night, and on birthdays.  There would also be two weeks of Christmas holiday time which the children would spend with the paternal grandmother.  

THE ISSUES

1. As the trial progressed, the parties identified a number of issues which stood to substantially determine which of the competing proposals was in the best interests of the children.  These included:

   ·Whether the children had been physically abused by the mother and the extent to which there is a risk of physical abuse by her in the future;

   ·Whether the children had been sexually abused by Mr C and the extent to which there is a risk of sexual abuse by him in the future;

   ·Whether the children had been subject to neglect whilst in the care of the mother, and the extent to which there is a risk of neglect in the future;

   ·Whether the father had been coaching the children to make allegations of abuse;

   ·The extent to which the children have been exposed to domestic violence, and the prospect of them being exposed to it in the future;

   ·The cultural needs of the children, and the best means of meeting them;

   ·The educational needs of the children, and the best means of meeting them.

RELEVANT LEGAL PRINCIPLES

The statutory framework

1. A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1), provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

2. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

3. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

4. It will be immediately appreciated that these provisions are something of an awkward fit to this case.  Only the mother seeks any order vesting parental responsibility with a parent, and both the father and the paternal grandmother seek orders that the children live with a non-parent.  The grandmother is not a parent for the purposes of the Family Law Act: see In the Marriage of Toben (1999) 24 FamLR 635, and the subsequent discussion of Murphy J in Nineth v Nineth (No.2) [2010] FamCA 1144 at [51]-[54].

5. Many of the factors listed in s 60CC relevant to determining where the best interests of a child may lie, refer specifically to parents. Moreover, the objects of Part VII of the Act also specifically refer to parents. No doubt this is in part because the vast bulk of parenting cases, both in this Court and in the Federal Circuit Court, involve parents as active protagonists in the litigation. However, even in cases which have non-parents as active protagonists, the objects of the Act, and the s 60CC considerations which refer to parents, still remain relevant: firstly, the Court must consider those objects and considerations even if they are not consistent with the respective cases advanced before the Court; secondly, to the extent that those considerations require the Court to consider the competing attributes and proposals of parents’ cases, necessarily they should cause the Court to undertake a similar exercise by reference to similar matters, albeit between the parties actively engaged in the litigation and their proposals. Whilst as discussed by the Full Court in Donnell v Davey (2010) FLC 93-428 at [99] that might usually be best undertaken by reference to s 60CC(3)(m), on a practical level in this case, it will be convenient to, where appropriate, do so by specific reference to the individual considerations pertaining to parents under s 60CC.

Aboriginality

1. The Family Law Act contains a number of provisions which deals specifically with aboriginal or Torres Strait Islander children. Relevant to this case, I identify those as being specifically s 60B(2)(e), s 60B(3), s 60CC(3)(h), s 60CC(6) and s 61F. It is unnecessary to set out the full text of all of those provisions in this case, however it is convenient to refer specifically to the latter two provisions, which are as follows:

   s 60CC(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

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

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

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

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

   61F Application to Aboriginal or Torres Strait Islander children

   In:

   (a) applying this Part to the circumstances of an Aboriginal or Torres Strait Islander child; or

   (b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;

   the court must have regard to any kinship obligations, and child‑rearing practices, of the child’s Aboriginal or Torres Strait Islander culture.

2. As to the latter provision, in Donnell & Dovey (supra), the Full Court said at [183]-[184] as follows:

   183. It will be seen that s 61F, in the form ultimately enacted, applies to all cases involving an Aboriginal or Torres Strait Islander child. In proceedings under Part VII relating to such a child, the court must have regard to the child-rearing practices of the relevant Aboriginal or Torres Strait Islander culture. Failure to take account of that provision would, in our view, ordinarily amount to appealable error. (For an illustration of a case in which s 61F was properly treated as an “integral” part of the decision making process see the judgment of Young J in Davis v Davis (2008) 38 Fam LR 671.)

   184. Section 61F does not say that the outcome will be determined by application of the relevant kinship obligations and child-rearing practices, but the court must have regard to them. In our view, this can only be seen to be done if findings are made regarding those obligations/practices and adequate reasons are given to explain why a decision has been made that either follows or departs from them. We accept this can be done without the court making express reference to s 61F, but we consider it would be desirable that the section is at least mentioned, if not discussed.

3. The Court continued at [187]-[188] as follows:

   187. A rigid interpretation of s 61F may have suggested that the adjournment option was to be preferred. On the face of the section, it is mandatory for the court to have regard to the relevant indigenous child-rearing practice in every case involving a child of Aboriginal or Torres Strait Islander background. If there is no evidence, or there is a lacuna in the evidence, the court cannot fully comply with the obligation imposed by the statute.

   188. However, such a strict interpretation of s 61F would be unrealistic. In many cases there will be no evidence at all of the relevant custom or practice. This may be because there is no acceptable evidence available to establish the custom or practice. Alternatively, there may be no evidence because no party asserts it to be of any relevance. For example, the child may have been brought up in a family where all meaningful attachment to indigenous culture has been lost.

4. In this context it is also pertinent to refer to an aspect of the decision of the earlier Full Court in Re CP (1997) 27 FamLR 486 at 502. Whilst I accept that the following passage is not a statement of principle or law, but rather a recital of part of the relevant evidence in that case, it may be taken as fairly representing an accepted position of general application in many of the cases in this Court involving aboriginal children. There the Court said as follows:

   We have already set out his Honour’s precis of the evidence given by Dr M, which he correctly noted was unchallenged.  Yet we do not consider that what his Honour recorded of her evidence, which his Honour said he accepted, captured the views she expressed, notwithstanding the limited, or restricted, ambit of her brief.  In particular, we do not consider that his Honour had sufficient regard to the following passages of Dr. M’s report:

   ... Children are born into a world of kin which is so vast they will probably be meeting new kin when they are old men and women. For an Aboriginal child, this network will become one of the two key ways in which their identity as a person is constructed. The other is through relations to country. Both are able to link the child to its ancestors and thus, by implication, to its descendants.'

   and—

   Disadvantages of not bringing up an Aboriginal child within his or her own community of kin and within at least frequent visiting distance of country with which he or she is identified might include:

   • the loss of relations with a vast range of kin who will perform a wide variety of roles associated with social relations, emotional and physical support, educative knowledge, economic interactions and spiritual training. This is as true of Aboriginal people from communities in `settled Australia' whose continuities of tradition have in certain cases been greatly disturbed by their colonial histories as well as those in more remote areas;

   • loss of knowledge which stems from the social interactions mentioned above;

   • ambiguities in or loss of identity with one's own kin and country, features I understand as essential to identity from an indigenous point of view, and which are much more specific to certain people and place than is the broader categorisation of `Aboriginal' used by the wider Australian society and which does not necessarily recognise the specificity of indigenous identity.''

   We consider that these aspects of Dr M's evidence were of significance in highlighting the disadvantage for an Aboriginal child in not being brought up within their own community and further demonstrate the inter-connectedness between identity and belonging within the specific group to which that child was born, compared to a child's wider identity as ``Aboriginal''. To our mind, the whole thrust of his Honour's judgment demonstrates that he gave the specificity of this child's cultural heritage, and the impact on his future welfare if he were not brought up within it, insufficient weight and this is amplified by his failure to make any reference to the above portions of Dr M's unchallenged evidence in his summary of it.

Standard of satisfaction required

1. S 140 of the Evidence Act (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Plainly, conduct that effects, or has a risk of, physical or sexual harm to a child, is very serious, and likely criminal.  On the other hand conduct that effects, or has a risk of, either emotionally or psychologically harming a child is not, of itself and without more, necessarily fraudulent or criminal.  Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases.   It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.

4. Further, the consequences attaching to a finding of the kind sought by the mother could potentially be grave.  As is demonstrated by this case itself, based upon such a fact being established, a party could seek to use it to found an argument that the other parent’s time with the child should either be supervised for some period of time, or even permanently.

5. Therefore consistent with s 140(2), given the gravity of the allegations which the parties make again the others in this case, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[10] 

SECTION 60 CC FACTORS

[10] See K v R (1997) 22 FamLR 592 and Re W (Sex Abuse – Standard of Proof) [2004] FamCA 768 at [15].

Introduction

1. I have previously identified in these reasons that, given that this is not a case of competing proposals between parents, but between parent and grandparent, then notwithstanding the guidance of the Full Court in Donnell & Dovey, I propose to consider pertinent s 60CC factors which refer to parents but which, in the context of litigation between a parent and grandparent, nonetheless raise concepts which remain relevant as between those protagonists, and to make any relevant observation by reference to those specific primary or secondary considerations.

2. That said, I will turn to consider the individual factors in this case. 

S 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. It does not appear to be seriously asserted by any party that, so long as the children can be adequately protected from any risk which each of them represents to the children, that they would not benefit from having a meaningful relationship with both of their parents.  The children have lived with their mother virtually all of their lives, and plainly have a strong attachment with her.  Similarly, notwithstanding some ambivalence to meeting the father during the Family Report process, the children appear to have a good relationship with him, and he is certainly an enthusiastic parent of them.  He interacted with them in ways which are of clear benefit to them; for instance during the Family Report observations, he engaged in structured activities in an excellent way, and provided good feedback to the children.

2. I am mindful that the Family Report writer’s observations are somewhat at odds with the mother’s evidence at para 61 of her affidavit filed 20 March 2013.  There she said:

   The boys are terrified of [the father] and are really upset when they come back from spending with him.  It is upsetting to see how badly the children are effected by the situation.  They say to me they hate me for sending to [the paternal grandmother and the father’s] as when they are over there “they questioned who is at mum’s [my] house” and they are “sick of them putting words in our mouths and trying to make us lie about you.”

3. Whilst the mother was not challenged as to that evidence, to the extent that it diverges from the observations of the Family Report writer as to the children’s relationship with the father, I prefer the evidence of Ms F.

4. The children also have a good relationship with the paternal grandmother.  I have already outlined her extensive background in raising children, and particularly, her extensive involvement in the education and mentoring of children.  It is to be expected that she would be able to make significant contributions to the children by virtue of them maintaining a strong relationship with her. 

5. At paras 152 and 153 of her report of 31 January 2013, Ms F opined as follows:

   152. Assessment data suggests [the mother] is capable of providing routine care for [L] and [D].  Whilst the quantity of alcohol consumed by [the mother] is a concern, the writer notes that she organises for [L] and [D] to be cared for by another family member; this is to her credit.  During the assessment, the writer gained the impression [the mother] may not have the capacity to refrain from engaging adult conversations when the children are present.

   153. The writer has no doubt [the father] is eager to spend time with [L] and [D].  Furthermore, he is keen to teach [L] and [D] about their Aboriginal and their South Sea Islander culture and traditional practices.  Whilst his capacity to provide the routine aspects of parenting remains untested, the writer has no doubt he is protective of the boys in regards to their physical safety.

6. At para 32 of her report of 4 April 2013, Ms F said in relation to the paternal grandmother:

   When canvassed about her strength as a parent and grandparent, [the paternal grandmother] replied “my character”.  I am a reliable, honest and dependable person.  I like to think of myself as morally upright.  I had one man all my life.  I have never seen the need for alcohol, cigarettes or drugs.  I have strong morals and beliefs.  I have a belief in god.  I am a practising, devout Christian.  I practice god’s word.  I set example.  My lifestyle says god is in my life.  I love the children and would stand up against anyone for them.  I know I can stand up to [the father]; I can stand up to [the father] because of my faith.”  [The paternal grandmother] also spoke about the importance she places on family; communicating and interacting with family.  She pointed out her family support her in her application to intervene.

S 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Overview

1. This was the principal battleground between all of the parties in the proceedings before me.  The father asserted that the mother has physically abused the children, and that whilst in her care, Mr C had sexually abused them.  He said that the court should conclude that the mother presents as an unacceptable risk of harm.  To an extent, the paternal grandmother also supported that position, albeit her concerns appeared to be mainly with Mr C.

2. Although pressed by the father with less fervour, there was also a live issue in relation to whether the mother presents as a risk of neglect to the children in consequence of her abuse of alcohol.

3. On the other hand both the mother and the Independent Children's Lawyer said that the father’s obsession with the alleged abuse by the mother and Mr C, had consumed him to a point where his involvement of the children in attempting to further investigation of the alleged abuse by relevant authorities, had made him an unacceptable risk of emotional abuse to the children.  Further, it was said that he presented a risk of emotional abuse to the children because of his propensity for violent behaviour in their presence.

The law

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. S 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. S 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The risks posed to the children by the mother

Overview

1. In order to properly evaluate the risks said to be posed to the children by the mother, it is necessary to also in the process canvas the same material from which it is said that the father poses an unacceptable risk to the children.  Therefore much of what follows is also relevant to my later consideration of the risks associated with the father.

Cigarette burns

1. The allegation that the mother had physically abused the children was a major plank in the father’s case.  He has long sought to have what he believed to be physical signs of the alleged abuse investigated.  The first time he did so appears to have been in April 2009.  A police report from July 2009[11] notes that in April 2009 the father had taken D to a doctor’s surgery in Town DD in relation to a small circular dot on his left knee.  The report continues:

   Police contacted doctor [redacted] who advised that he had examined both children and was unable to conclude how the injuries occurred.  Doctor [redacted] dismissed the injury to the second child, citing knee injuries on two year old children were extremely difficult to gauge.  Police from [Town R] CIB attended … [N] Street and located the suspect and the victim child.  Victim child was interviewed by police and made no disclosures in relation to the injuries.  Action officer liaised with Department of Child Safety who had also attempted to interview the child 23/07/09 without success.  Suspect has declined to be formally interviewed however has strenuously denied all allegations.  Suspect and informant are currently involved in family law court matters and the informant is currently wanted in relation to a number of domestic violence matters.  The time delay in reporting the matters is of concern and coincides with the informant’s upcoming court appearance.  The information supplied by the informant appears to be of a vexatious nature.  Department of Child Safety have been advised of the outcome.  There is insufficient evidence to substantiate this matter…   

   [11]Part of a morass of documents annexed to the father’s affidavit filed 11 September 2012.

1. That is not to say that the mother has not demonstrated a capacity for violent behaviour, and also breached domestic violence orders in the past.  However if there be some merit in comparing their recourse to violence, I find the father is by far and away the more violent of the two, and uses violence and intimidation as part of his regular repertoire.

S 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Clearly it would be preferable to make an order least likely to lead to the institution of further proceedings.  The person most likely, in the event that the litigation does not conclude in a way which is favourable to them, to bring further proceedings, is the father.  However the fact the father is likely to continue to agitate, whether in this Court or elsewhere, to have the allegations of abuse found to be substantiated, with the desired consequence that the children will be removed from the mother’s care, cannot mean that he should therefore achieve the outcome he desires.  It is a relevant consideration, but not one which I give much weight to in this case.

2. At para 11 of his Outline, counsel for the Independent Children's Lawyer pessimistically submitted:

   It appears certain that there will be ongoing conflict – extending to violence – between the parents; and an ongoing involvement of Child Safety authorities.  The view of the Independent Children's Lawyer is that no order of this Court will prevent this ongoing conflict – it should be left to the relevant authorities to act protectively if (or rather when) they must.

3. As unfortunate as that prediction is, it is probably correct.

S 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant

1. I cannot identify any other fact or circumstance relevant under this criterion to this case.

SECTION 61F

1. No party presented any evidence as to any particular relevant custom or practice regarding kinship obligations and child rearing practices of the children’s Aboriginal culture.  Other than the paternal grandmother’s tribal connections, there was no evidence to the tribal connections to the children, or indeed the parties’ involvement in any relevant Aboriginal activities, except basic cultural events, and the father’s traditional food gathering.

PARENTAL RESPONSIBILITY

1. This is not a case where is it possible to contemplate that orders for shared parental responsibility (shared in a sense that decisions need to be made co-operatively and jointly) would succeed.  There is too much bad blood between the parties, and the levels of distrust are too high.  Further, at least in recent years, there is no history of amicable communication or co-operative decision making between any of the parties.

2. However as I discussed with the parties during the course of the trial, it does seem to me that this is a case where areas of parental responsibility could be divided, so that one or more parties may have parental responsibility in relation to an issue, leaving the balance of parental responsibility to the other party on all remaining issues.  Education is an obvious candidate for that sort of regime of orders here, given the paternal grandmother’s strong belief in, and considerable experience with, education of Aboriginal and South Sea Islander children.  The mother does not pretend to any great familiarity or experience of education, and therefore, from the perspective of who would make the better decisions in relation to the children’s education, it seems to me plain that would be the paternal grandmother.

3. In my view, it is in the children’s best interests that parental responsibility for decisions in relation to their education should rest with the paternal grandmother.  It is in the children’s best interests that the balance of parental responsibility be given to the party with whom they reside.

WITH WHOM SHOULD THE CHILDREN LIVE?

1. In her first Family Report, Ms F refrained from making specific recommendations in relation to the children’s future living arrangements.  However she did say that there may be merit in ascertaining the paternal grandmother’s level of commitment as regarding the children living with her.  In her second Family Report, she recommended that the children live with the paternal grandmother.  That position was not supported by the Independent Children's Lawyer.

2. I identify that the following matters favour the children continuing to live with the mother:

   ·She has been their primary care provider for most of their lives;

   ·There would be no dislocation to their lives;

   ·Whilst there are valid criticisms of the mother, particularly relating to past abuse of alcohol and limited insight into the the impact of her actions upon the children’s emotional wellbeing, she is, as counsel for the Independent Children's Lawyer says, nonetheless a “good enough” parent.  Even Ms F in cross-examination conceded that the mother was “excellent on routine matters.”  Rather her concerns were the potential for exposure to aggression in the mother’s care and the fact that on occasion she put her needs above the children’s.

3. On the other hand, the following points weigh against the children living with the mother:

   ·There is a risk that she may continue to abuse alcohol;

   ·There is a risk that she may continue to lack sufficient insight into the impact of her behaviours upon the children’s emotional health;

   ·There is the prospect that she may continue to have relationships with people associated with violence, and hence expose the children to violence.

4. Turning then to the paternal grandmother, the following are matters in favour of the children living with her:

   ·She presents as clearly the best role model for these children;

   ·She presents as clearly having the best capacity to provide for the children’s needs.

5. On the other hand, the following points are not in favour of the children living with the paternal grandmother:

   ·There is a real risk that living with the paternal grandmother would not sufficiently protect them from the risk of unacceptable risk of emotional harm which the father poses to them.  This is a matter which I give considerable weight to;

   ·As she ages, her physical mobility is likely to be adversely affected, which might impact upon her capacity to care for two active boys;

   ·She may not facilitate a good relationship between the boys and their mother;

   ·It would necessarily involve some substantial disruption to the children’s lives, and particularly, most likely see them change homes, cities and schools, and dramatically decrease their time with the mother.

6. Mr Fellows referred me to the decision of Murphy J in Carlson v Bowden (2009) 40 Fam LR 327 where at [176] his Honour referred “the legitimate fundamental rights of a parent” as being a potentially relevant matter for consideration in determining parenting orders. Whilst that is a matter I do have some regard to, ultimately it seems to me that the critical issues in this case are firstly, that I am satisfied that notwithstanding her flaws, the mother is nonetheless a “good enough” parent, and secondly, that notwithstanding the fact that the paternal grandmother is clearly the best equipped person as between the parties to raise the children, I am not persuaded that if the children were to live with her, they would be sufficiently protected from the unacceptable risk of emotional harm which the father poses to them. Those two matters, when combined, persuade me that the best interests of the children are in continuing to reside with their mother, and I will so order.

TIME SPENT WITH THE FATHER

1. I am satisfied that the risks associated with the father, particularly from his obsession with allegations of abuse involving the children, means there needs to be supervision of the time which he spends with them.  His conduct in continually taking the children to medical practitioners or other authorities to further his claims of abuse, his coaching and interrogation of them, and his distribution of the flyer in relation to one of the boys, means that he simply cannot be trusted to spend unsupervised time with the children for the foreseeable future.

2. That raises practical difficulties as to how much time would be made available for him, and whether or not a contact centre – given his violent history – would be prepared to facilitate supervision of his time, however no other supervisor can be identified.

3. Notwithstanding those concerns, upon balance I am of the view that the orders sought by the Independent Children's Lawyer in relation to the father’s time with the children are appropriate and in their best interests, and will so order.

TIME SPENT WITH THE PATERNAL GRANDMOTHER

1. In my view the paternal grandmother and her continuing influence on the children is a very positive matter.  However there is a practical difficulty in maximising her input into the children’s lives if she does not live in Town R, a town where in the recent past she has felt threatened by Mr C.  Nonetheless it would plainly be in the children’s best interests, if she were living in Town R, that she were to spend time with them, particularly after school, with a view to assisting them with homework and the like.  Further, she should be able to spend time with them on the weekends, and for some of the school holidays.

2. In the event that the children did not live with her, the paternal grandmother pressed that I should make orders that the children spend time with her every Saturday, and not just the one or two Saturdays a month proposed by the Independent Children's Lawyer.  She also sought additional mid-week time.  The Independent Children's Lawyer conceded that in the event the paternal grandmother lives in Town R, that the children spending up to two school afternoons with her would be appropriate, and up to two Saturdays per month.  I think that it is in the children’s best interests to have that amount of time with the paternal grandmother, particularly given that she will have the sole parental responsibility for education.  However I do not accept that the children should spend every Saturday with her; to do so would be too disruptive to living with the mother.

3. Upon balance in my view the orders sought by the Independent Children's Lawyer in the alternative in this regard are in the children’s best interests, and I will make them.

CONCLUSION

1. For these reasons there will be orders in the terms proposed by the Independent Children's Lawyer, including an order that parental responsibility in relation to educational issues involving the children vests solely with the paternal grandmother.

I certify that the preceding two hundred and forty three (243) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 June 2014.

Associate: 

Date:  23 June 2014