Cheetham and Cheetham and Anor
[2017] FCCA 3182
•19 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHEETHAM & CHEETHAM & ANOR | [2017] FCCA 3182 |
| Catchwords: FAMILY LAW – Parenting – fact of parenthood – sibling separation – whether children should live with parents or paternal grandmother – spend time with arrangements – death of paternal grandfather after trial pending judgment – re-opening – updated Family Report – change in Family Consultant’s recommendations. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC |
| Cases cited: Aldridge & Keaton [2009] FamCAFC 229 |
| Applicant: | MS CHEETHAM |
| First Respondent: | MR CHEETHAM |
| Second Respondent: | MS TONER |
| File Number: | MLC 8077 of 2015 |
| Judgment of: | Judge Baker |
| Hearing dates: | 28 November 2016 to 2 December 2016, 26 April 2017 to 28 April 2017, 13 June 2017 to 14 June 2017, 22 November 2017 |
| Date of Last Submission: | 22 November 2017 |
| Delivered at: | Hobart |
| Delivered on: | 19 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Turnbull |
| Solicitors for the Applicant: | Levis Stace & Cooper |
| Counsel for the First Respondent: | Mr Murray (First Respondent was self-represented on 22 November 2017) |
| Solicitors for the First Respondent: Counsel for the Second Respondent: Solicitors for the Second Respondent: Counsel for the Independent Children’s Lawyer: Solicitors for the Independent Children’s Lawyer: | Bishops Barristers & Solicitors Ms Gibson Charmaine Gibson Mr Fitzgerald Legal Aid Commission of Tasmania |
ORDERS
The father Mr Cheetham and the mother Ms Toner have equal shared parental responsibility for the children X born (omitted) 2012 and Y born (omitted) 2012 (“the children”)
The mother and father:
(a)Notify the paternal grandmother in writing via email/SMS message of any significant developments, including but not limited to the children’s education and health;
(b)Notify the paternal grandmother as soon as reasonably practicable in the event that either child requires emergency medical treatment;
(c)Keep the paternal grandmother updated in relation to which school the children are attending, and will notify the paternal grandmother within 7 days in the event the children change school; and
(d)Authorise the school the children are attending to provide the paternal grandmother with copies of school reports, newsletters and school photographs (at her expense).
(e)The paternal grandmother communicate directly with the children’s school to request copies of school reports, newsletters and school photographs at her own expense.
From the week commencing 26 January 2018 the children live with the mother and father.
The children spend time with the paternal grandmother as follows:
(a)Commencing 16 February 2018 on each alternate weekend from 5.00pm Friday until 4.00pm Sunday and in the event the Monday is a public holiday until 4.00pm Monday; and each term thereafter commencing on the first weekend of the school term
(b)Commencing 2018 and each alternate year thereafter for one half of the school holiday period commencing the first Saturday immediately following conclusion of school 5.00pm to the next Saturday at 5.00pm.
(c)Commencing 2018 and each year thereafter during the long term summer holiday period on a week about arrangements as agreed between the parties and failing agreement but subject to special days commencing 27 December of that year.
In the event the children are not otherwise in the mother and father’s care then they will be with them as follows:
(a)The weekend on which Mother’s Day falls;
(b)The weekend on which Father’s Day falls;
(c)In the event the children’s birthday falls on a day in which the children would not otherwise be with the parents then at times as agreed;
(d)In 2017 and each alternate year thereafter from 4.00pm Christmas Eve to 4.00pm Christmas Day;
(e)In 2018 and each alternate year thereafter from 3.00pm Christmas Day to 4.00pm Boxing Day.
Notwithstanding anything stated in these orders, in the event the children are not with the paternal grandmother then the children will spend time with her on the weekend of her birthday, and if the birthday falls on a weekday on the closest weekend to that day.
By consent, changeover will occur at (omitted) playground or other such place as agreed between the parties in writing.
BY CONSENT THE COURT NOTES THAT:
The intention of the parties in relation to Z is as follows:
(a)That she will be present at changeovers from now on at least once per fortnight.
(b)That from mid-January 2018 Z shall spend time at changeover for 1-2 hours with the paternal grandmother.
(c)That by Easter 2018 and beyond Z will spend either Saturday or Sunday with the paternal grandmother to coincide with changeover.
(d)Further amounts of time for the paternal grandmother to spend with Z will be discussed at a Family Relationship Centre or similar community mediation service, and/or discussion of any other matters in relation to Z’s time with the paternal grandmother.
THE COURT FURTHER NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Cheetham & Cheetham & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
MLC 8077 of 2015
| MS CHEETHAM |
Applicant
And
| MR CHEETHAM |
First Respondent
MS TONER
Second Respondent
REASONS FOR JUDGMENT
Introduction
This parenting application concerns twins now aged five years, X and Y, both born (omitted) 2012. The determination for the court is whether the much loved children should live with the paternal grandmother or live with their parents in an intact family, including their younger sister Z and their two half siblings.
The applicant paternal grandmother is aged 60 years. The paternal grandfather tragically died on (omitted) 2017,[1] after the trial and pending judgment. He was aged 66 years at the date of his death.
[1] Exhibit PG9.
The father and the mother are both 36 years of age. The father has a child from a previous relationship, A born (omitted) 2003. She lives with her mother and is currently not spending time with the father. The mother has two children from previous relationships, B aged 14 years and C aged eight years. The parties have a third child together, Z, born (omitted) 2014. The children B, C and Z live with the parents.
The paternal grandmother did not seek any orders in respect of Z.
After the death of the paternal grandfather in (omitted) 2017, directions were made for the filing of further affidavits and for an updated Family Report to be prepared. The matter was adjourned to 22 November for re-opening of the evidence.
On 14 November 2017, a notice of ceasing to act was filed by the lawyers for the father. He was self-represented at the resumed hearing.
At the end of the re-opening of the proceedings, there was agreement about the changeover time for the twins on 10 December 2017 and their time with both parties for Christmas 2017. It was noted that the intention of the parties in relation to Z is that she will be present at changeovers at least once per fortnight; by mid-January, she will spend one-two hours with the paternal grandmother; and by Easter 2018, she will spend alternate Saturday or Sunday with her. The parties will use a Family Relationship Centre to discuss issues.
Much of the evidence heard during the trial is no longer relevant, due to the death of the paternal grandfather. Before his death, one issue to be determined was whether the twins were at an unacceptable risk of harm whilst in the paternal grandmother’s household, due to a positive finding having been made that the paternal grandfather had sexually abused a young girl. By way of background, between 2005 and 2009, the father was involved in proceedings against his former partner, Ms A, about their daughter A. A judgment was delivered in 2009 by Federal Magistrate Hughes (as she then was). Her Honour identified as a ground to re-open the proceedings, an allegation that the paternal grandfather had sexually assaulted a 12-year-old girl. Her Honour found the child’s account ‘compelling’. Her Honour made a positive finding that:
Mr D did sexually assault (the child) in the manner described by her… that allowing (child subject to the proceedings) to spend unsupervised time in the care of the paternal grandfather would expose her to an unacceptable risk of sexual abuse.
The paternal grandfather always denied the allegations. He continued to deny that he sexually abused the 12 year old girl.
The paternal grandfather said that the father told him after this finding was made that he agreed ‘the allegations’ were untrue. After the decision, A continued to visit the paternal grandparents in New South Wales in the school holidays and alternate Christmas holidays until July 2015.
In October 2015, A (aged 12 years) told the father that the paternal grandfather assaulted her when she was at his farm when she was about five years old. He said that A told him, ‘Mr D did it.’
The paternal grandfather denied that he sexually abused A when she was five years old.
The paternal grandfather was interviewed by police on (omitted) 2016. He denied the allegation. No charges were made against him.
After the re-opening of the proceedings after the death of the paternal grandfather, it was accepted by the parties that the sexual abuse finding against the paternal grandfather was only relevant in respect of the father’s credibility. I will discuss the issue for this purpose only. The evidence of Ms A and Ms M is no longer relevant.
Care arrangements for the children since birth
The parents commenced a de facto relationship in around (omitted) 2012. They left Tasmania in 2012 to live with the paternal grandparents in New South Wales and returned to live in Tasmania on (omitted) 2015.
Y and X were born on (omitted) 2012. The grandparents asserted that when the twins were a few weeks old, they were increasingly caring for them until May 2013, when they were primarily living with them. In October 2014 they started receiving Centrelink benefits in respect of the children.
The parents asserted that they have always been the primary carers of the children.
I prefer the evidence given by the paternal grandparents that the children started living primarily in their care from around May 2013. Their evidence was corroborated by their witnesses, Mr M and Ms B, who were both credible witnesses. Also, it was determined by Centrelink that the children were in the 100% care of the paternal grandmother from 1 May 2013. The parents also signed an agreement dated 17 August 2015. The agreement reads that the children were ‘out at the Cheetham farm for the past 2 ½ years all bar the few days that Ms Toner’s mother Ms I has been over…’ I do not accept the parent’s evidence that they signed the agreement because they were under duress.
I consider that apart from several periods, the parents spent time with the twins on a regular basis. It is likely that the mother was finding it difficult to cope with the demands of the young twins, who were sickly, and the demands of her other children when the father was working long hours. I am not persuaded that the parents abandoned or neglected the children. The grandparents were very willing to assist them and became very attached to the children during this time. The paternal grandmother was the main person attending to their medical issues.
On 23 July 2015, the father demanded the return of the children from the grandparents and an incident occurred resulting in attendance by police. On 12 August 2015, the mother and father moved the children to Tasmania without the knowledge of the paternal grandparents.
The paternal grandmother filed an initiating application on 20 August 2015. She sought and obtained a recovery order, an order for sole parental responsibility of the children and an order that the children live with her.
Until November 2015, the children did not spend any time with the parents. They spent time with the parents on two occasions in November.
On 24 November 2015, consent orders were made by Judge Stewart for the children to live one week in Tasmania where the parents were living, and one week in New South Wales, where the grandparents were living.
In (omitted) 2015, the grandparents moved to live in Tasmania at (omitted). The paternal grandmother continues to live there. The parents live in (omitted), a distance of around (omitted) kilometres from (omitted).
The children commenced living week about with the parents and paternal grandparents from February 2016.
The children attend Kindergarten at (omitted) Primary School when in the care of the parents. They did not attend school whilst in the care of the grandparents because the Principals of the respective schools did not agree to a dual enrolment at that time.
At the end of the trial in June 2017, the parties agreed upon the children’s schooling arrangements. Consent orders were made on the 14 June 2017. It was agreed that the parties do all things necessary to facilitate a dual enrolment of the children at (omitted) Primary School and (omitted) School. Evidence was given at the trial by Ms R, the Principal of (omitted) Primary School that a dual enrolment was possible after assessments of the children were made.
The twins commenced at (omitted) Primary School for Term 3 2017. X catches the bus and the paternal grandmother usually drives Y to school, which is about 10 minutes away.
Proposals
The paternal grandmother sought orders for joint parental responsibility for her and the parents, that the children live with her and spend time with their parents:
(a) Each alternate weekend from Friday 5:00p.m. until Sunday 5:00p.m.;
(b) For one half of all gazetted school holidays;
(c) On Christmas Day and the children’s birthday, Father’s Day and Mother’s Day for at least one half of such days with the exact times to be agreed.
The father and the mother sought orders that the mother and father have equal shared parental responsibility for the children and they live with them. They sought an order that the paternal grandmother not use physical discipline on the children. They further sought that the children spend time with the paternal grandmother as follows:
(i) During the 2017 and 2018 school term, on each alternate weekend from 5:00 p.m. Friday until 4:00 p.m. Sunday;
(ii) Commencing in 2019, during the school term, on each fourth weekend from 5:00 p.m. Friday until 4:00 p.m. Sunday;
(iii) Commencing in 2017 for one half of each of the school holiday periods on a week about basis;
(iv) Further times as agreed between the parties.
The father and the mother also sought an order that notwithstanding anything to the contrary, the children be in the mother and father’s care at the following times:
(a) The weekend of Mother’s Day
(b) The Weekend of Father’s Day
(c) From 3:00 p.m. on Christmas Eve until 3:00 p.m. Boxing Day each year; and
(d) On 5 November each year.
The ICL proposed that dependent on findings made by the court, the father and mother have equal shared parental responsibility for the children, with provision for the paternal grandmother’s continued involvement; the children live with the father and mother; and they spend time with the paternal grandmother. The ICL also proposed provisions relating to special days.[2]
[2] Exhibit ICL6.
The Evidence
The paternal grandmother relied upon:
·Her affidavits filed 16 November 2016 and 20 October 2017;
·affidavit of Mr D filed 15 November 2016;
·affidavit of Ms B filed 11 November 2016;
·affidavit of Dr A filed 11 November 2016;
·affidavit of Mr M filed 16 November 2016; and
·Family Report dated 27 October 2016.
The father relied upon:
·His affidavits filed 16 November 2016 and 6 November 2017; and
·Judgment of Federal Magistrate Hughes (as she then was).
The mother relied upon:
·Her affidavits filed 23 November 2016 and 23 November 2017; and
·Affidavit of Ms I filed 26 April 2017.
The ICL relied upon:
·Family Report dated 27 October 2016 and Updated Report dated 22 September 2017;
·Transcript of proceedings in the Federal Circuit Court of Australia Melbourne Registry dated Tuesday 24 November 2015; and
·Affidavits filed on behalf of the parties.
Evidence of Family Consultant Ms L
On 24 November 2015, the parties attended a child dispute conference in Melbourne. Ms L gave an oral report which was transcribed. She indicated that it was unclear to her who provided the primary care to the children, as both the parents and paternal grandparents claimed that they have fulfilled this role.
Ms L noted that the children did not spend any time or have any communication with their parents between 21 - 24 August 2015 and around 9 or 10 November 2015, when the court ordered that time occur. The parties disputed the reasons for that. The parents stated that they were told they were not permitted to spend any time with the children. The paternal grandparents stated that the parents made no effort or attempt to spend any time with them.
The children had been spending time with the parents for a period of four days prior to the conference.
Ms L observed the children greeted the grandparents with what she described as:
utter joy; they ran to them, jumped into their arms, they giggled, they laughed, they sought attention from them, they enjoyed cuddles and story time, and it seemed quite clear that they have a very close relationship with their grandparents.
Similarly, when the children were reunited with the parents they had the same reaction with them; ‘they jumped into their arms, they were very happy and comfortable with their parents, they play comfortably with both of them. And all the adults were all appropriate with the children...’
The only concern Ms L raised was ‘the parents this morning hadn’t provided food for the children, had nappies with them but didn’t leave them in the child care room.’
After hearing this evidence, interim orders were made that provided for the children to live week about with the paternal grandmother in New South Wales and the parents in Tasmania.
Ms L’s observations of the children’s presentation with the parents and the grandparents were very similar. There was no observation made by Ms L about any issues between Y and the mother, as observed by Ms S in October 2016.
Evidence of Family Consultant Ms S
Ms S prepared a report on 27 October 2016. She wrote:
It is recommended that, if the court finds that Ms Toner and Mr D do not pose a risk of physical or sexual abuse to Y and X, they live with the paternal grandparents.
It is recommended that the children spend alternate weekends with their parents and one day in the other week with their parents.
It is recommended that changes to the parenting arrangements be facilitated by meetings at a community mediation facility.
It is recommended all parties desist from [harsh] or corporal punishment of the children.
Ms S was cross-examined on 29 November 2016. She said her recommendations were reached by balancing a range of considerations, but that there were two factors that concerned her the most. The first was Y’s seemingly distant relationship with her mother. The second was the potential loss of a relationship between the children and the grandparents, if the children are to live primarily with their parents.
Ms S reported as ‘striking’ her observation that ‘Y’s lack of connection (through eye contact and play and affection) with her mother was unmistakable. They appeared to have a distant relationship.’ Under cross-examination she described this distant relationship and their interactions as ‘absolutely not typical’ and ‘unusual’ for a mother and a child of Y’s age. Ms S said she was confident that her observations were representative of the nature of the relationship between Y and her mother on an everyday basis.
Ms S noted that Y and X behaved differently when greeting their family members, observing that ‘Y was noticeable in her looking away and not making eye contact with her parents. She did not say “Hello” or “Goodbye” and rejected her mother’s show of affection during these transitions.’ When asked about this in cross examination she explained that Y ‘rejected her mother’s show and offer of affection’ by ‘turning her head, moving away, looking unhappy.’ She explained that it was significant that Y was not able to engage in hellos and goodbyes with her parents.
In contrast, she explained that ‘X seemed to be more usual in what you would expect of a young child with a caregiver – happy, engaged, responsive.’ She noted, however, that X probably has some difficulties as well. She said that X’s relationships with various caregivers seemed simpler and less complex than Y’s. She explained that he seemed to have positive relationships with all of his caregivers, and in no particular hierarchy.
Ms S noted that there could be several possible reasons for the distant relationship observed between Y and her mother, including:
Y has possibly learnt to avoid her mother as a result of the learning that her mother has not been physically or emotionally available to her. Such a scenario could have occurred if the paternal grandparents became the twins’ primary carers. Another possibility is Ms Toner was not emotionally available to her during her infancy as is a risk with caring for twins, especially if Ms Toner was mentally unwell.
She also explained under cross-examination that it was possible that the mother was quite anxious, due to the importance of the interview. Y may have picked up on this anxiety, making the interaction between them more difficult. She said ‘in another observation where the stakes aren’t so high, the mother may have felt more relaxed, things might have settled eventually between the two of them.’
In relation to Y’s relationship with her father, Ms S said that their relationship appeared to be ‘warm’ and ‘really comfortable’.
In regard to the children’s interactions with the maternal grandparents, Ms S observed that Y ignored her maternal grandmother’s (‘Ms I’) attempt to engage with her. Y also rejected her two attempts to give her a goodbye cuddle. It was observed that X also did not respond to her approach. Y interacted with the maternal grandfather, asking him for help when her fancy dress ‘wings’ fell off.
Ms S did not observe much of a connection between Y and X and their siblings B and C. Of the relationship between Y and X with their younger sister Z, Ms S observed that they played independently of her. She agreed that she did not consider the separation of the twins from their siblings as a primary reason for the children living in the primary care of their parents, as they did not appear to have much of a connection with them. She acknowledged that the nature of the relationship between the twins and their siblings has been characterised by their different living arrangements. She also acknowledged that it is not a primary issue because the twins have already been living apart from them. She agreed that separation of siblings is a significant issue, but that in the context of the whole case, this was not a primary issue.
Of the children’s interactions with the paternal grandparents, Ms S observed that the paternal grandmother gravitated towards Y, interacting with her for the majority of the observation and proactively initiating conversation. X was observed to play independently for most of this time, but the paternal grandfather was actively involved in monitoring and supporting his play. Ms S reported that both paternal grandparents impressed as being child focused and relaxed in their interactions with the children.
Ms S agreed that the children’s relationship with the paternal grandparents is a very significant one for them. It would be emotionally and psychologically damaging for the children for that relationship to be lost. She said that the children’s primary relationship is with the paternal grandmother, and the paternal grandfather to a lesser extent.
In relation to living arrangements, Ms S explained that for children of Y and X’s age, shorter and more frequent connections with both sides of the family are better. She acknowledged that the hour and half drive between the paternal grandparents’ home and the parents’ home meant this could be difficult. She explained that in the event the distance could be overcome, it would be good for them to see their parents more regularly than alternate weekends. She explained she was not wedded to the idea of alternate weekends. She stressed that if such arrangements could be made, there would still need to be a primary home for the children.
Ms S indicated that an important factor for her when considering her recommendations was the ability of each of the caregivers to promote the relationship with the other to the children. She agreed that she was concerned that the parents would not promote a relationship between the grandparents and the children. This concern arose from a number of observations, the first being that the parents have not promoted a relationship between their other daughter, Z, and the grandparents. She was concerned that this reflected:
the difficulty between these sets of parties, really, in that… Mr Cheetham was not pleased about his parents living so close to them. Just those sorts of things suggested to me that there was both a pattern and, maybe, a willingness to keep the grandparents out of the picture – with regard to the twins – when it came to Z and what they were saying about the relationship with the grandparents and how much they disliked them...
Ms S acknowledged that it was possible that the grandparents have undermined Y and X’s relationships with their parents.
When asked whether the age of the grandparents concerned her, she acknowledged that it was a factor, but said that the relationships the children have with their carers weighs more heavily than their age. She said, ‘the age per se isn’t of concern to me in this particular matter.’
Ms S observed that the paternal grandfather was preoccupied about the sexual abuse allegations during his interview with her. She noted that the maternal grandmother ‘appeared extremely concerned about what Mr D was saying and asked him to stop talking. She was largely successful in encouraging Mr D to relax.’ During cross-examination Ms S elaborated on this observation, saying: ‘Mr Cheetham was talking about things that Mrs Cheetham hadn’t mentioned in her interview, and Mrs Cheetham appeared to be uncomfortable about these issues being raised.’
Ms S was not aware that a positive finding had been made against the paternal grandfather until she was asked about it during cross-examination by counsel for the father. She did not undertake a risk assessment, which would involve a lot more questions of the paternal grandparents and would involve looking at other material, to establish the type of risk involved. But not having done this, she said the children should not be cared for by the paternal grandfather.
She acknowledged that this change in recommendation would lead to questions about psychological disruption for the children; whether substantial time should occur; and whether there should be supervision of the children.
If the children were to live primarily with the parents, Ms S stressed that there would need to be a gradual process for Y, with the assistance of therapy to reconnect the children to the family.
Updated Family Report
Ms S reported that the paternal grandmother told her that she is grieving for her husband and has difficulty functioning in the weeks that she is not caring for the children. She said that when they are with her, the children give her a purpose. She told Ms S that if the children were not able to live with her, ‘it would kill me.’
She told Ms S that she is fit and capable of ‘running around after the twins’, playing with them and looking after them. In respect of her accommodation, which is a unit, there is one bed which the twins share with her. When her husband was alive he slept on a mattress on the floor. Her plans for building a new home are on hold indefinitely, while her husband’s estate is being administered. She is looking for alternative accommodation and is financially able to care for the children. She wants to stay living close to her son Mr M and his family, who also live in (omitted).
She said that her husband’s funeral went well and that her son and the mother attended. She feels their relationships have settled since the funeral and there is now no ill-will between her and her son. Notwithstanding this, she said she does not believe that her relationship with him and the mother is sufficient to support her seeing the children, if they live primarily with them. She expects she would see them as little as she now sees Z.
The father and the mother were interviewed together and presented as relaxed and supportive of each other’s views. They spoke sensitively and philosophically about the paternal grandfather’s death. They appeared to wish to maintain more amicable relations with the paternal grandmother. The mother said that at the time the funeral, she decided to put the past behind her. Her son encouraged her to forgive the paternal grandmother for the hurtful things she has said and done.
Ms S wrote that the children may have settled into their living arrangements significantly more than at the time of the first Family Report. Given the relative stability of the parents and the children’s connection to their siblings while living with their parents, and the recent major upheaval in the paternal grandmother’s life, Ms S recommended that the twins should reside primarily with their parents. She was of the view that it is likely that they will benefit greatly from stability and routine.
Ms S stressed that it will be important for both children, but particularly X, to continue to be able to talk about ‘Pop’ and keep in close contact with their grandmother as much as possible, such as on alternate weekends and half the school holidays.
She wrote that the loss of such a significant figure as the paternal grandfather has impacted X greatly. The children witnessed his death, and their loss of him may predispose them to emotional difficulties. She recommended accessing support for their bereavement and the many changes in their lives to date.
Ms S was cross-examined about the change in her recommendation. Although she did not have the benefit of observing the children with the parties again and ascertaining whether there had been an improvement in the relationship between Y and the mother, her view is now that the children should live with the parents.
This is because the dynamics of the paternal grandmother’s household have changed. The absence of the paternal grandfather, a significant carer for the young children, places double the responsibility and practical care on the paternal grandmother. She will no longer have his emotional and practical support. She pointed out that the paternal grandfather’s strong connection with X, in particular, is no longer there.
Ms S also said that the attitude of the mother towards the paternal grandmother has changed. She has worked to put the issues with her behind her. She feels more able to support the children’s relationship with her. The parents appeared to be more relaxed, in particular the father, about his relationship with his mother. In general there seemed to be some resolution that had not been there when she first interviewed them. The current arrangement was more settled for them and the children.
The parents told Ms S that they want to gradually reintroduce Z to the paternal grandmother, but this has been logistically difficult to achieve.
Ms S was of the view that the transition could take place over the Christmas school holidays. She suggested that the change could be explained to the children by relating it to the school year and by having to go to the one school only. She said that keeping the paternal grandfather’s memory alive in conversations and pictures is important to help the children through changes. The same is true for the paternal grandmother, and she should be talked about in the parents’ household.
Although it would have been advantageous if Ms S had observed the children with the parties for the updated report, her evidence was still helpful. Her evidence is not determinative and must be weighed against all other evidence.[3]
[3] Hall & Hall (1979) FLC ¶90-713.
Circumstances of the Maternal Grandmother
The paternal grandmother suffers from diabetes, which is controlled by insulin. She is otherwise in good health.
In (omitted) 2017, the paternal grandparents sold their farm at (omitted), as they intended to build a new home on their property at (omitted). They had plans with the (omitted) Council for a six bedroom home and the plans have been approved.
They moved into a unit attached to the property where another of their sons, Mr M, and his daughter live. The twins and the maternal grandmother share a room and a big bed. The unit is small, but it is a temporary place for them. She is looking for a bigger place to rent and provide a home for the twins. She does not want to rush into building the home.
The paternal grandmother wants to keep the farm, but does not want to start building the house until she has a better idea of how the future will be. She has until (omitted) 2018 to start building with the current planning approval. The property is worth about $2,000,000 and the mortgage is around $700,000.
She intends to work the farm by herself. She said that she is capable of caring for the twins on the farm alone. She has had help from Mr M, and her other son Mr I has offered to help. She has also had help from other people.
The father went to the funeral on (omitted) 2017 with the mother. She said that before the service, she and the mother talked. The mother gave her a hug and said she was sorry about what she has done to them and what she said about her. The mother told her that she would come to the changeover on Sunday and bring Z. The paternal grandmother saw Z at the changeover.
The paternal grandmother and twins were present when the paternal grandfather had a heart attack whilst working on the farm. She deposed that the children are missing their grandfather.
Circumstances of the Father and the Mother
The father lives with the mother, B, C and Z in a four bedroom home in (omitted). The twins live with them each alternate week. The home is a 10 minute walk from (omitted) Primary School where the children attend.
The father is a casual (occupation omitted) and works seven days per week and can work up to 15 hours per day. The mother is engaged in full-time home duties.
The father deposed that he is sympathetic to his mother and her personal circumstances. He accepts that she is very distressed about the death of his father. He accepts that the twins miss him very much. He speaks to his mother regularly on the telephone and has offered to help her with the farm.
The mother gave evidence that the children are doing well at both schools. After the death of the paternal grandfather she made enquiries about arranging a counsellor for the children through (omitted) Primary School.
The mother gave evidence that she gave the paternal grandmother a hug at the paternal grandfather’s funeral. She told her that she would be at the changeover with Z and did attend with Z on (omitted) 2017.
The mother deposed that since the death of the paternal grandfather, Y has been a bit ‘more clingy’ and sometimes says that she misses Poppy. She talks to the children about him, telling them that he is in heaven and watching over them.
X appears to be affected by the death and appears to be much ‘more moody’. He is ‘more clingy’ with the father and gets anxious when he goes to work. He needs to be reassured that he will come back. X often talks about Pop and has talked about what happened. The mother gave him a photograph of the paternal grandfather holding X when he was a baby and he often sleeps with that under his pillow.
The mother suffered from depression in 2016. She was asked about her medical records held by Dr R, which noted that a precipitating factor was stress from five children. She answered that she may have been having problems with the children at the time, but she and the father managed them. She said her anxiety was affecting her. She was prescribed medication.
She conceded that in 2011, she was not coping with her two children. She is now in a stable relationship and her partner is a father to all the children. He treats them with respect, looks after them and treats them as his own children. She manages her feelings by talking to her mother and her sister. Her family live in the (omitted) area and are able to give her support. She currently does not need a psychologist.
When the mother gave evidence in November 2017, she indicated that she is coping well when all five children are living with her.
Credit of the parties
I am of the view that neither the paternal grandmother, nor the father, nor the mother, were impressive witnesses. They all made allegations about the other in order to promote their cases.
Counsel for the ICL submitted that the father did himself no credit by relying on the finding by Federal Magistrate Hughes (as she then was). He did not accept the finding at the time, as reported in the judgment.
Notwithstanding the evidence given in 2009 by the father, he relied on the judgment to support his case about the supervision of the paternal grandfather’s time with the twins.
Order 12 made in 2009 reads ‘that the father is restrained from causing or allowing the child to be left alone in the company of her paternal grandfather, Mr D.’
The evidence was that after the orders were made in 2009, A was sent to the paternal grandparents’ farm to spend time with them without the father being present.
The father also knew from at least 2011 that A was having unsupervised time with the paternal grandfather at the farm in New South Wales. The father accepted there had been no statements made by her of any inappropriate conduct by the grandfather. During cross-examination, he gave several versions about A’s disclosure to him in 2015, which I consider were not credible. The mother’s evidence about A’s disclosure was also not credible.
It was submitted that the father and the mother were not credible witnesses by counsel for the paternal grandmother. He referred to the parents requiring a s.128 certificate about their evidence of falsely claiming they had separated in order to obtain Centrelink payments. I agree with counsel’s submission that the evidence they gave in relation to the alleged assaults upon B and C was not credible. They alleged that the children were being hit with a belt or a spoon and were presenting with red welts. Yet they arranged for B and C to be cared for by the paternal grandparents when the twins were born and when Z was born. They could not give an adequate explanation about this.
The father was non–responsive, and he was sarcastic and rude about his parents. However, his attitude and demeanour changed dramatically when he gave evidence in November 2017. He was pleasant and responsive to questions. He was respectful to his mother when questioning her during her cross-examination.
The mother was very emotional when she gave evidence on both occasions. She was distressed about what the paternal grandparents alleged about her neglecting the twins and for having taken them from her care permanently. She was concerned about whether they would try to take Z into their care.
Although I prefer the evidence of the paternal grandmother in respect of the care arrangements for the children, I consider parts of her evidence were not credible. She was also manipulative. She did not inform Ms S about the positive finding of sexual assault by the paternal grandfather. She stopped him from discussing this with her. This meant that Ms S was not made aware by them about the finding when she made her first written recommendation. During her cross-examination, Ms S said that this was a significant fact and would have changed her view.
The paternal grandmother was not open with the New South Wales Child Protection authorities in September 2015 about the finding of sexual assault. The safety assessment decision report,[4]indicates that the grandparents told the caseworker that the incident was investigated and was proven to be false, as there were three witnesses who stated the paternal grandfather was never alone with the girl. When the paternal grandmother was cross-examined about this, she said she could not recall talking to the caseworker about the sexual assault incidents. After further questioning, she admitted that it was ‘quite possible’ that she did not tell him about the positive finding made by the Court.
[4] Exhibit M1.
The paternal grandmother’s evidence about supervising the paternal grandfather with A when she visited the farm over a four year period was not credible. When she was asked whether she supervised the paternal grandfather’s time with A, she said that when they were out on the farm, she, the paternal grandfather and A were always together and they were always together at night. She said that she could not recall one occasion over a four-year period when the paternal grandfather and A were alone together.
Her evidence about the children’s health was not credible. The general medical practitioner for the children, Dr D provided a report at the request of the solicitors for the paternal grandmother. Dr D was firstly asked about his observations of bruising on the children and their causes, ‘for example corporal punishment and/or accident.’ He wrote:
I have not noticed any bruising during their visits to me. There was one visit to my colleague Ms U when she documented superficial laceration to big toe and a palm sized bruise to the inner aspect or the thigh of Y and the grandmother was concerned about it so the GP referred the child to the emergency for assessment.
The paternal grandmother did not agree that the referral to emergency was not because of any concern expressed by the doctor, but was because of her concern. She asserted that there was more concern coming from the doctor.
The report indicated that in respect of the children’s eczema, ‘…there is no out of ordinary presentation regarding such condition in comparison with other children from same age.’
Further in the report Dr D wrote:
asthma, eczema and hayfever are a very common presentation in childhood as part of allergy and reaction to many factors… Regarding general observation, both children behave according to their age; and they contract colds and flu at the same rate as any ordinary child… They are on asthma prevention and reliever inhalers. They are on steroid topical preparation when needed for their eczema.
The report indicates, ‘all the above mentioned medications are commonly and frequently prescribed to their medical conditions and their age group. There is no over or under – usage of such medication if they are used according to our instruction.’
When the paternal grandmother was asked whether she accepted that there are no health issues that relate to any neglectful care by the mother, she answered ‘there is neglectful care.’
When Dr D gave evidence, he agreed that the children are among children who have been frequently ‘camped at the surgery or brought to the surgery by their grandparents.’ He agreed that they were sometimes brought to the surgery when suffering from illnesses that did not really warrant a visit. He said that some of the visits were only for check-ups for the well-being of the children. He never suggested to the grandparents that the children are frequently ill in a way that is worrying. He can recall the paternal grandmother commenting about the children not being properly looked after by their parents.
Dr D agreed that it is very common for children to get chest infections and have runny noses and suffer vomiting from time to time. He said that ‘probably…one in every five children can get asthma and as they grow they can get eczema easily as well’. He said that eczema can become infected from scratching, which can cause abrasions to the skin and result in infection.
Dr D said that he treated the children for scabies, which is a common childhood condition. It can be picked up anywhere, including from kindergarten or from other children. He suspected the children had scabies as they were itching all over, but at the same time the diagnosis was infected eczema. He gave them treatments for the eczema, the infection and the scabies at the same time.
Dr D said that the paternal grandmother took the children to the surgery on an approximately fortnightly basis during 2016.
The paternal grandmother said that Dr D’s evidence that he did not consider the children to have been subjected to abuse or neglect, was different to what he has told her about the twins. She did not accept his evidence that the children were presenting with usual childhood ailments. The paternal grandmother said that she would not take the children to the doctor unless there was something wrong with them and she challenged Dr D’s report.
I accept the evidence of Dr D and reject the paternal grandmother’s differing evidence.
Relevant Law
Section 60B sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) provides that when a court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration.
This is an application involving a grandparent who is seeking parenting orders. In Aldridge & Keaton,[5] the Full Court noted:
while there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
· the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
· the recognition in s65D(1) that ultimately a court should make such parenting order as it thinks proper; and
· that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
[5] [2009] FamCAFC 229 [75].
In determining the child’s best interests, a court is required to consider the relevant factors in s.60CC of the Act. I turn to discuss these.
Primary considerations
Section 60CC(2)(a)
the benefit to the child of having a meaningful relationship with both of the child’s parents.
I consider that the children will benefit from having a meaningful relationship with both parents.
Section 60CC(2)(b)
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Whether the children are at an unacceptable risk of harm in the care of the paternal grandmother is no longer in issue, due to the death of the paternal grandfather.
The parents allege that the paternal grandmother used excessive discipline on B and C. She denied using corporal punishment or threatening them with a wooden spoon. She denied using a belt on them. I am not persuaded that she hit them with a leather belt or used excessive discipline. The paternal grandfather admitted that he hit B in frustration on one occasion.
The twins are well cared for by the paternal grandmother. There is no evidence to persuade me that they are at risk in her care. The mother conceded that she did not believe the paternal grandmother would hurt the children.
The paternal grandmother asserted that the parents were neglectful in their care of the children.
I consider that when the twins were babies, it was likely that the parents had difficulty coping as the father was away working for long hours. As the twins were sickly the paternal grandparents helped and this occurred more frequently as time went on. I do not consider that the parents abandoned the children. They were seeing them regularly and were involved in their medical care.
The evidence of Dr D indicated that in 2016, the paternal grandmother was taking the children to him almost every time they had visited the parents. His evidence was that he has never seen anything to cause him concern. The children presented with asthma and eczema, which sometimes flares up, and usual childhood ailments, scratches and bruises.
I am not persuaded that the parents have neglected the children or placed them at risk.
Section 60CC(2A)
This subparagraph is not relevant.
I turn now to a consideration of each of the relevant s.60CC(3) factors.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children are too young to express a view upon which any weight can be placed.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Y and X have a close and loving relationship with the paternal grandmother.
At the time of the first Family Report, Ms S was of the view that Y and the mother appeared to have a distant relationship, due to her lack of connection through eye contact, play and affection with the mother. She wrote that Y appeared fretful and unable to engage with her.
During cross examination of Ms S at the November hearing, this observation of Y’s and the mother’s relationship did not concern her. She said that their relationship is ‘probably similar,’ as restoration of a secure relationship for young children takes time. The children have had a chance to develop their relationships with their parents and something would have had to have gone ‘seriously wrong’ if they had not developed. She believes that it is significant that the mother has not had assistance in developing the relationship. She believes that it is also significant that Y has a good relationship with the father.
Ms S said that she weighed up the differences for the children in the two households; the parent’s household that ‘seems to… have settled significantly’; and the paternal grandmother’s household which ‘has had a very major jolt with big implications…’.
The father gave evidence that the children and Z have a close relationship and play together. During the week when the twins are with the paternal grandmother, Z frequently asks where they are. C adores the younger children and counts down the days when the twins are to return to their care.
The children have contact with the maternal grandmother on a regular basis. She helps the mother with them when needed.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The parents did not spend several periods of time with the children between mid-2013 and mid-2015.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The parents have supported the children when in their care.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In the first Family Report, Ms S was concerned about the damaged relationship between the parents and the paternal grandparents, to such an extent that the paternal grandparents ‘had not met’ with their grandchild Z. Ms S wrote:
Mr Cheetham and Ms Toner have deliberately chosen this to be so. This provides some indication that, if Y and X were to live primarily with Mr Cheetham and Ms Toner, they too may become estranged from the paternal grandparents due to the wishes and deliberate actions of their parents. Such a disconnection would most likely be a source of significant emotional trauma for them.
The father’s attitude to his parents was hostile throughout the proceedings until the November hearing. During his evidence he repeatedly said things such as ‘they have poisoned the water, there is a lot of poison dumped in the river and it takes a lot for me to re-trust…’, and that he ‘may be able to forgive them for the poison in the water within 50 years.’
He told Ms S that he wanted the grandparents to move to Hobart, to be right away from them and the children.
Ms S found that the father’s attitude had changed substantially when the updated Report interviews were undertaken.
I also found that his attitude when giving evidence recently was patently different from his attitude when giving evidence previously, when he was bitter and hostile towards his parents. His recent evidence was given in a friendly and relaxed manner.
I consider the father was genuine when he gave evidence about his change in attitude towards the paternal grandmother. During cross-examination he said, ‘once poison is in the water…there has been a lot of poison dropped in the water, and I do not like to swim in poisoned water…a lot of water has flowed underneath the bridge and taken the poison out.’
The father explained that he started to realise before his father died that things had to change. He speaks regularly to his mother on the telephone and their relationship is now good.
Ms S also believed that the mother had changed her attitude towards the paternal grandmother. The mother gave evidence that her attitude had changed. She was tired of the conflict. She made it clear that she had no intention of preventing the children from spending time with the paternal grandmother. She said, ‘it would affect Y if she didn’t spend time with her.’
The mother said that she sometimes asks the twins what they have done with the paternal grandmother during their week with her. She said that they always want to talk about ‘Pop’.
She explained her change in attitude occurred because her son B persuaded her to ‘let go’ and she realised that the paternal grandmother would not hurt Z because she is ‘blood.’
During her evidence, it was clear that the mother was very hurt by the allegations made by the paternal grandmother about her neglecting the twins and also about the paternal grandmother’s recent allegations. The paternal grandmother gave evidence that Y says that she hates her mother; the mother puts tomatoes in Y’s sandwiches, which affects her eczema; and she provides X with size one shoes and clothes. The mother denied these allegations. The paternal grandmother’s explanation for Y saying her mother hates her was that when she and Z fight, her mother blames her and she gets into trouble.
The mother was not able to commit to a timetable for Z to spend time with the paternal grandmother. However, her attitude about this was different to her attitude when giving evidence previously, when she struggled about the concept of Z spending any time with the paternal grandparents. Whilst she was not able to agree to an order for Z, she made it clear that she wants to gradually introduce Z to the paternal grandmother, but wants some control over when she goes. She made it clear that she would not have said that she will make Z available, if this was not going to happen. Previously she had said that she would have difficulty in making this happen.
At the end of the November hearing, the parties agreed for a notation to be made; that Z will attend the changeovers for the twins; by mid-January, Z will spend one-two hours with the paternal grandmother; and by Easter 2018, she will spend alternate Saturday or Sunday with her. The parties will use a Family Relationship Centre to discuss issues.
During her recent oral evidence, the paternal grandmother accepted that there is ‘possibly’ a benefit to the twins of living with their siblings. Her main concern is her fear that she will not see the twins, in the same way she has not seen Z, if they live with the parents. She believes that the children will be better off living with her because they will continue to have a relationship with their parents. She also has concerns about the parents’ care of the children.
Ms S wrote in her first Family Report about a significant emotional disturbance occurring for the children, if they became estranged from the paternal grandparents by living with the parents.
I do not consider the children will become estranged from the paternal grandmother. I accept the evidence of the parents that they will continue to make the twins available for time with her. I am of the view that they understand the importance of their relationship with the paternal grandmother.
The children have lived together in a week about arrangement since around early 2016. The twins are five years old and Z is three years old, so they are close in age. B and C are older but have a close relationship with the twins.
If siblings have a good relationship with one another, it is ordinarily in their best interests that they remain living together. This can provide them with a sense of stability and support as they grow up. In the decision of Bennett & Bennett,[6] the Full Court of the Family Court held that the separation of two children close in age, and who have lived together for so long, was a most serious step, which could only be justified in compelling circumstances.
[6] (1991) FLC 92-191.
Section 60CC(3)(e)
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This subparagraph is not relevant.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am of the view that the parents can provide for all the children’s needs. They have enrolled the children in Kindergarten at (omitted) Primary School where they attend each alternate week when in their care. There have been no reports from (omitted) Primary School about issues with the presentation of the children. There have been no concerns raised about their care of the children from the school or from Child Safety Services. The Principal of the school gave evidence that there was no indication of neglect or lack of proper care and the children have a good attendance record.
The mother suffers from anxiety for which she takes medication. She gave evidence during cross examination that she will be able to cope with all five children living with her. She said that she has coped when the twins are living with them. She gets out of bed at 6:00 a.m. in the morning to get them up for school. She gets them ready, baths them, gets them dressed and gets their breakfast. B catches the bus to school and she takes the other three children to school. They catch the bus home and she has their afternoon snacks ready when they get home.
I consider that the parents have the capacity to provide for the emotional needs of the children. They have insight about the importance of the paternal grandmother to the children. They have changed their attitude towards her. The mother gave evidence that she has given X a photograph of him when he was a baby with the paternal grandfather. X often sleeps with it under his pillow. The paternal grandmother accepted that the mother is sympathetic about the children’s feelings about the death of the paternal grandfather. She accepted that the mother is supportive of the children’s memories of him.
I consider that the paternal grandmother is over critical of the parents’ care of the children. This raises a concern about her capacity to promote the children’s relationship with the parents and provide for their emotional needs. The paternal grandmother complained about the parents not attending to the twins’ health. She has taken them to the doctor for various health problems, such as eczema, asthma, chest and ear problems. She asserted that the parents neglected them. She has continued to criticise the mother in her recent evidence.
I agree with the submission of the ICL that her complaints are minor, such as Y’s hair not being done, and shoes and clothing for X being too small. I do not accept the paternal grandmother’s evidence that size one clothing and shoes were provided for X by the mother. The mother gave evidence that X is wearing size 5, 6 and 7 clothing and size 11 shoes, which she bought recently. The paternal grandmother told Ms S that on the morning of the updated report interviews Y told her, ‘I hate my mum.’ Ms S commented that ‘it seemed unusual that it was on the morning of the update report…’
It was conceded by her counsel that the paternal grandmother has been over zealous about the children’s medical needs. The evidence from Dr D demonstrated this.
The paternal grandmother told Ms S that it would ‘kill’ her if the children are not ordered to live with her. She acknowledged that the children provide her with emotional support at this time of significant grief. The children sleep in the same bed as her, but were doing so when the paternal grandfather was alive. This raises a concern about the grandmother’s dependence on the children.
She currently has the capacity to provide for the children’s physical needs. The ICL made a point about the young ages of the children and the age of the paternal grandmother. I agree with his submission that it is a major consideration that caring for the children in the medium to long term could become difficult for her.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
X has been assessed at school as needing further assessment and a referral for further services in respect of speech and language development. Y also needs further assessment and a referral for further services. There has been communication between speech pathologists from both primary schools, where the children currently attend.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This subparagraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parents were not responsible when they unilaterally removed the children to Tasmania, necessitating a recovery order application. Otherwise, I consider the parents have demonstrated a responsible attitude to parenting.
The children’s attendance at school is good when they are in the parents’ care. There have been no reports, other than from the paternal grandmother that the children’s needs are not being provided for by the parents.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no current family violence order. I consider family violence occurred when the father went to the paternal grandparents’ farm on 24 July 2015. There was an argument about the twins’ living arrangements and I am of the view it is likely that both the father and the paternal grandfather were agitated and made threats to each other.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The orders that I intend to make should be least likely to lead to the institution of further proceedings, unless orders are not complied with. I consider that the parents understand that the court orders should be complied with. There is no history of them not complying with interim orders made. There has not been any complaint from the paternal grandmother about non-compliance. Changeovers have worked and there have been no issues.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
The children have a close and loving relationship with the paternal grandmother. They will benefit from continuing to have a meaningful relationship with her by spending regular time with her.
Parental responsibility
The presumption of equal shared parental responsibility does not apply, as there are reasonable grounds to believe that family violence has occurred.
I consider that it is in the best interests of the children that their parents have equal shared parental responsibility for them. The parents will be required to provide the paternal grandmother with notice of decisions made about their long-term welfare.
I do not consider that it is in the best interests of the children to live in an equal time arrangement with the parents and the paternal grandmother. Such time is not reasonably practicable due to the geographical distance the parties live apart. Neither party is prepared to move closer to the other party.
I consider that it is in the best interests of the children that they live with their parents and siblings in an intact and settled family. I consider that it is in their best interests that they spend substantial and significant time with the paternal grandmother. However, such time is also not reasonably practicable.
I consider that they should therefore spend time with the paternal grandmother each alternate weekend and one half of all school holidays. I do not consider that it is in the children’s best interests that the time should reduce after one year to each fourth weekend, due to their close relationship with the paternal grandmother. I am of the view that time on special days should occur as proposed by the ICL.
In respect of the transition of the children to the parents’ care, this can take place in the last two weeks of the Christmas school holidays. The children can live with the parents for two weeks and then have weekend time with the paternal grandmother during the first weekend after the commencement of school, which is the weekend commencing 9 February 2018. As recommended by Ms S, support for the children for the changes in their lives can be obtained by the parents. The mother has already made enquiries at the school about counselling for them.
I consider that these arrangements will enable the children to have a meaningful relationship with both the paternal grandmother and the parents.
I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 19 December 2017
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