Collard and Clary & Anor
[2013] FamCA 498
FAMILY COURT OF AUSTRALIA
| COLLARD & CLARY AND ANOR | [2013] FamCA 498 |
| FAMILY LAW – CHILDREN – Best interests of the children – Where one party is a grandparent - Where the father’s proposals for the children are unclear and have changed throughout the proceedings – Where the grandmother, the father and his partner all have significant health difficulties – Where there are geographical difficulties as between the parties’ residences FAMILY LAW – CHILDREN – Application in respect subject son as between mother and father – Where that child’s whereabouts are unknown – Where that child has run away from his father’s care – Whether any order should be made in respect of that child when his whereabouts are unknown – Whether a Recovery Order in respect of that child should remain in force or be discharged – Where the mother has not participated in the later part of the proceedings – Whether any order should be made in the mother’s favour FAMILY LAW – CHILDREN – Application in respect of subject girls as between the father and maternal grandmother – Where the subject girls have lived with the grandmother for a significant period of their lives – Whether the subject girls should be removed from living with their grandmother and placed with their father when his ability to care for them on a full time basis is untested and his proposals are unclear or unsubstantiated – Where it is impractical for the non-live-with party to have substantial and significant time – Whether the live-with party should have sole parental responsibility |
| Family Law Act 1975 (Cth) |
| Donnell & Dovey (2010) FLC 93-428, (2010) 42 Fam LR 559 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422 Hort & Verran (2009) FLC 93-418 Malcolm & Monroe and Anor (2011) FLC 93-460 Mazorski & Albright [2007] FamCA 520 Mulvany & Lane (2009) FLC 93-404 |
| APPLICANT: | Mr Collard |
| 1st RESPONDENT: | Ms B Clary |
| 2nd RESPONDENT: | Ms C Clary |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Kaiti |
| FILE NUMBER: | PAC | 5930 | of | 2010 |
| DATE DELIVERED: | 1 July 2013 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATE: | 19 - 23 November 2012, 6, 7 & 16 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Murphy |
| SOLICITOR FOR THE APPLICANT: | Mr McKay |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Weaver |
| SOLICITOR FOR THE 1ST RESPONDENT: | First part: Second part: Then Mr Layson |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE 2ND RESPONDENT: | Ms Beach Mahony Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | First part: Mr Lee (Second part: Ms Kaiti Solicitor) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kaiti |
Orders
That all previous Orders in respect of the children L born … June 1998, M born … May 1999 and N born … November 2000 be and are hereby discharged.
That the grandmother have sole parental responsibility for the children L and N.
That, notwithstanding the above Order for sole parental responsibility in respect of the children L and N, the grandmother shall notify the father upon her making decisions affecting the long term care and welfare of L and/or N, including, but not limited to, decisions of education, religious upbringing and health.
That the children L and N live with the grandmother.
That the father spend time with the children L and N as follows:-
(a)During the school holiday periods falling between first and second and third and fourth school terms in each year, commencing in 2013, from 12.00 noon on the day immediately after the last day of term until 12.00 noon on the Saturday nearest the commencement of the next ensuing school term. Such time shall be exercised in Sydney or as the father otherwise decides.
(i)For the purpose of these periods of time, the father shall collect the children from the grandmother’s place of residence at the commencement of each such period, and the grandmother shall collect the children from the father’s residence at the conclusion of each such period.
(b)For a period of three weeks in each December/January school holiday period as follows:-
(i)For the holiday period of December 2013/January 2014 and each alternate period thereafter, commencing at 12.00 noon on the day immediately after the last day of school term and concluding on the day three weeks thereafter at 12.00 noon.
(ii)For the holiday period of December 2014/January 2015 and each alternate period thereafter, commencing at 12.00 noon on the 3rd of January in each such period and concluding at 12.00 noon on the 24th of January in each such period.
(iii)Such time shall be exercised in Sydney or as the father otherwise decides.
(iv)For the purpose of these periods of time, the father shall collect the children from the grandmother’s place of residence at the commencement of each such period and shall return the children to that place of residence at the conclusion of each such period.
(c)From 9.00 am on Saturday until 6.00 pm on Sunday on the fifth weekend of each school term.
(i)For the purpose of these periods of time, the father shall collect the children from the grandmother’s place of residence at the commencement of each such period and shall return the children to that place of residence at the conclusion of each such period.
(ii)Such time shall be exercised in the Town D area or its surrounds.
That in the event that the father is, for whatever reason, not able to exercise time with the children L and N in accordance with these Orders, he shall give the grandmother no less than fourteen (14) days notice of that fact.
That the father shall communicate with the children L and N by telephone each Thursday night between the hours of 7.00 pm and 8.00 pm.
That the above Order be facilitated by the father telephoning the grandmother’s telephone number and the grandmother shall ensure that the telephone is capable of receiving the father’s calls and shall further ensure that the said children present to speak with their father.
That both the father and the grandmother shall notify each other in the event of any change in residential address and/or telephone contact details within seven (7) days of any such change being effected.
That the grandmother shall authorise any school attended by either L or N, or both of them, to supply to the father, at his expense, copies of all school reports, school photographs and notices concerning school activities such as are normally made available to the parents of children attending that school.
That the father and/or his partner shall be entitled to attend any school activity in which either L or N, or both of them, may be involved in from time to time, being activities to which parents of that school are normally invited to attend.
That the father and/or his partner shall be entitled, at any time, whether in Town D, Sydney or elsewhere, to attend any sporting event in which either L or N, or both of them, may be competing in from time to time.
That I dismiss all outstanding applications and cross-applications.
That I remove all issues from the Active Pending Cases List.
That all subpoenas be returned not before fifty-six (56) days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
Collard & Clary 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 PARRAMATTA |
FILE NUMBER: PAC 5930 of 2010
| Mr Collard |
Applicant
And
| Ms B Clary |
First Respondent
And
| Ms C Clary |
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction & Background
This matter concerns the future living arrangements for the three children of the Applicant Father and the First Respondent Mother. Those children are L, M and N. At the time of delivery of this Judgment, they are aged respectively 14 years, 13 years and 12 years old. The Second Respondent is the children’s maternal grandmother.
At the time of delivery of this Judgment, M’s precise whereabouts are unknown. The mother has not attended on the last days of the hearing and her whereabouts are also unknown. The best information available from the maternal grandmother is that the mother and son are living together somewhere in the Canberra area.
L and N live with their grandmother in Town D, south-western NSW. They have done so since they came into their grandmother’s care by means of a kinship placement.
The father wishes all three children live with him and his partner in premises they occupy at Sydney Suburb E. The mother’s position as put forward by Mr Weaver of counsel who continues to appear, despite her absence, is that M live with her and the girls remain with their grandmother.
The maternal grandmother seeks orders for her granddaughters to remain living with her. She seeks no orders in respect of her grandson.
The mother’s lack of participation in the later stages of these proceedings is of grave concern, as is the lack of precise or particular knowledge of M’s whereabouts.
M came to live with his father in his household pursuant to Orders made on 23 November 2012. Those Orders were made as interim Orders at the conclusion of the first part of the hearing. On that same day, I made Orders for the girls to live with their grandmother in the intervening period. The matter was then adjourned from 23 November 2012 to 7 February 2013 for mention, to allow certain matters to be attended to and, if possible, to fix dates to continue and conclude the hearing.
The matter came back into the list early on 1 February 2013. On that occasion I was informed that M had run away from his father’s home and was thought to be with an aunt or great aunt in the Canberra area. The mother did not appear on that occasion, and the matter was adjourned to 7 February 2013.
On that day, further information was provided about M. Amongst other things, it was recorded that M was alleged to have said that he would run away if returned to the father. Material was provided about M’s involvement with the NSW juvenile justice system.
On 7 February 2013, I made a Recovery Order for M, but ordered that it was to lie in the Registry until 27 February 2013 whilst further enquiries were made.
On 27 February 2013, I ordered the issue and activation of the Recovery Order, and adjourned the matter to 4 April 2013.
On that next occasion, the matter was fixed for continuation and conclusion of hearing on 6 and 7 May 2013. The matter did not conclude on 7 May 2013 and was stood over until 16 May 2013 when I heard the parties’ submissions.
At the date of delivery of these Reasons for Judgment, the whereabouts of M are still unknown.
Brief Background
A brief history of the matter is as follows:-
a)The father was born in 1966 and as at the time of delivery of these Reasons for Judgment, he was 46 years of age. He is of Fijian descent.
b)The mother was born in 1975 and as at the time of delivery of these Reasons for Judgment, she was 37 years of age. She is of Aboriginal descent.
c)The maternal grandmother was born in 1954 and as at the time of delivery of these Reasons for Judgment, she was 58 years of age. She is also of Aboriginal descent.
d)The parents commenced cohabitation in about 1997.
e)The first child of the relationship, L, was born in June 1998. The second, M, was born in May 1999, and N, the third child of the parents, was born in November 2000.
f)The parents separated on a final basis in about 1999 or 2000.
g)Both the mother and the father both have children of other relationships. The father has four other children – one adult child named F, and three minor children named G, H and J who are approaching or in their teenage years. The mother has two daughters of a previous relationship named K and O, who are in their late teenage years, and a younger daughter named P.
The parties’ documents
The Applicant Father sought to rely upon the following documents:-
a)Amended Initiating Application filed 20 April 2011;
b)Affidavit of the father sworn 12 October 2012 and e-filed 12 October 2012;
c)Proof of further evidence of father, which became an exhibit in the proceedings on 19 November 2012;
d)Updating affidavit of the father sworn 26 February 2013 and e-filed 27 February 2013;
e)Further updating affidavit of the father sworn 26 April 2013 and e-filed 26 April 2013;
f)Affidavit of his partner, Ms Q, sworn 12 October 2012 and e-filed 12 October 2012;
g)Affidavit of Mr A sworn 19 November 2012 and e-filed 20 November 2012; and
h)Proof of further evidence of Mr A.
The Respondent Mother sought to rely upon the following documents:-
a)Response filed 18 August 2011;
b)Affidavit of the mother sworn 18 August 2011 and filed 18 August 2011;
c)Notice of Child Abuse or Family Violence filed 18 August 2011;
d)Further affidavit of the mother sworn 16 November 2012 and e-filed 16 November 2012.
The mother did not file any updating material at the time of the second part of the hearing.
The Respondent Maternal Grandmother sought to rely upon the following documents:-
a)Response filed 31 January 2012;
b)Affidavit of the maternal grandmother sworn 15 October 2012 and e-filed 16 October 2012;
c)Updating affidavit of the maternal grandmother sworn 30 January 2013 and e-filed 4 February 2013;
d)Further updating affidavit of the maternal grandmother sworn 24 April 2013 and e-filed 26 April 2013.
She also sought to rely upon the reports prepared by Family Consultant Mr R.
The Independent Children’s Lawyer sought to rely upon the following documents:-
a)Child Responsive Program Memorandum prepared by Mr R dated 4 May 2012; and
b)Specific Issues Report prepared by Mr R dated 20 July 2012.
Together the above two reports became, as a bundle, Court’s Exhibit 1 in the proceedings.
The Applicant father’s case
The father’s case was that all three children should live with him and his partner in Suburb E. His assertion was that if the children did not do so, their prospects for the future were very bleak indeed. He continued in the second part of the hearing to assert that M should live with him, notwithstanding that the child, having been placed with him by Orders of 23 November 2012, had run away and, at present, his whereabouts were unknown.
The father made extensive criticisms of the mother and the grandmother as to their capacity to care for the children. His partner was actively involved in the application that the children should come and live in the father’s household.
The father’s case was that, if the children were to come and live with them, arrangements would be made for schooling and accommodation.
The Respondent mother’s case
The mother did not attend or participate in the second part of the hearing. Her case was, up to the time when her participation in the hearing ceased, that her son should live with her and that she was the person best equipped and qualified to care for M. She asserted that her two daughters should live with her mother, the children’s grandmother, in Town D. It was her case that she and her mother were the persons best capable of caring for the children.
The Second Respondent grandmother’s case
The Second Respondent, the maternal grandmother, sought orders for L and N to continue living with her in Town D, and continuing to attend their present schools. It was her case that she was the person best able to care for the children.
The Independent Children’s Lawyer’s position
The Independent Children’s Lawyer sought orders for all three children to live with the father.
The evidence before me
In the first part of the hearing, I heard evidence from the father, his partner, Ms Q, a Mr A, who was interposed during Ms Q’s evidence and who gave evidence by telephone, having provided a proof of evidence. I also heard from the mother and the maternal grandmother.
In the second part of the hearing, further evidence was given by the father, Ms Q and the maternal grandmother, and then Mr R, the Family Consultant who had prepared two reports in this matter, was called.
The father gave short evidence in chief and was cross-examined extensively. He gave evidence of his work hours being from 7.30 am to 3.30 pm. He indicated that he travelled from his home at Suburb E to Suburb I, leaving at approximately 5.30 am. He got a lift as he was unable to drive at that time. He returned home at 5.30 pm; there was some overtime work available previously, but that was no longer the case.
He indicated that his partner would be responsible for the care of the children. His proposal was that his son would attend Suburb E High School (or School S). Asked what would happen if his son would not comply with directions, he indicated that his partner would ring him and he would speak to his son on the telephone. He said that due to the nature of his work he simply cannot cease work. He indicated that his son was in Year 8 and N was in Year 6. He was worried about the children’s present living arrangements, particularly about his son and his son’s friend’s stealing cars and being out at night. He wants his son living with him in Suburb E. He said his son is a follower.
He said that L would also be better in Suburb E. He wants her in a good environment. He has concerns about her. He is concerned about her being a teenager growing up in Town D. The child is living with her grandmother. He said he had tried to contact L’s school by telephone and was told that he was not allowed to do so. He said that he had spoken to the headmaster and was told he was not allowed to do so. He said that his daughter had also been suspended.
It was put to him that he had shown no interest in the children until about 2010. He said that this was not so. He said that he had looked after them previously. He said the parties had separated in 1999 and his son came to live with him in 2010. He said that he had always seen his children and he cared about their education. Asked about making contact with schools to obtain reports for the children, he said that he did not have time and he did not have the telephone number. It was put that he could have telephoned during his lunch break and that he was not interested. He said that this was not so.
He said that his son lived with him in 2010 at the mother’s request. His son had stayed one week and then took his partner’s car. He (the son) was 11 years old at the time. He had driven to the Blue Mountains and then to Suburb T, where he surrendered himself to police. He said that he took his son back to his home; the child said he was having fun. He says that the son did not say that he wanted to go back to Town D. The father reported that he was shocked, but not angry.
He was asked about his son being suspended in Town D and said that he had spoken to the principal of the primary school. He said that he had been intending to put his son into school at Suburb E. He said that he did not think his son would try to go back to Town D.
It was put to him, and he agreed, that he had made no attempt to find out the result of criminal charges against his son.
He said that he had given up alcohol in 2009 or 2010. Asked about an incident involving a previous partner, he denied that he had threatened her and he said he was not intoxicated at the time. He wanted a car key. He wanted the key so that his partner, Ms Q, could drive the car to Town D. He said he has never held a licence.
He conceded that he had argued with his previous partner when asked to leave; he denied threatening to injure her. He said that he had been dealt with for breaching a bond, and had been sentenced to perform 100 hours of community service.
Asked about M’s sporting achievements, he said that if she were to live with him, he would find a team nearby. He is aware that the child wants to stay living with her grandmother. He said it would be up to his partner to deal with the child attending school.
He is aware that M is a talented Sport U player. He said his Aboriginal Liaison Officer had made enquiries about sporting teams. He conceded that his son will miss his friends if he moves to live with him. He would take his son to events. He acknowledged that his son will miss his mother and grandmother.
He said that if his son became angry that he would take him to Town D and his partner would have to drive. He said that Ms Q is not working. He has given thought to the possibility of his son disobeying his partner, and said that if he were to do so that he (the father) would speak to him. It was put to him that he was leaving a good deal to his Aboriginal Liaison Officer. He said that he would be working with his liaison officer. I did not understand this answer. It was put to him that he had left it to the mother to raise the children, which he denied.
He said that his son has learning problems. He said that the mother did not send their son to school. He said that he had seen a reference to Attention Deficit Hyperactivity Disorder in documents he had read. He said that he had no idea the child suffered, or possibly suffered, from this condition before he had read those documents. He said he does not know if his son takes medication. He said that he cannot contact the mother to speak to her.
He said that in his home there is a computer which can be connected to the internet. He did not ask his partner to go on the internet to investigate or research the child’s possible condition of Attention Deficit Hyperactivity Disorder.
He said that he has another son aged 11 years who has a diagnosis of Attention Deficit Hyperactivity Disorder. He said he sees that boy every weekend. That boy has been prescribed Ritalin.
He said that his son M is behaving badly whilst living in Town D; stealing. He said his son is not taking medication. He said he thought his son M would talk to him. He said he had tried to discuss the situation with the mother and that she had told him that it was not his business.
He said the school had insisted that his lawyer, rather than he, contact them about the children. He had no discussions with the mother about his son M seeing a doctor.
He said that his relationship with his partner, Ms Q, had been on foot for nine years. They lived in a two bedroom flat which was too small for the three children. Enquiries had been made as to the cost of a larger flat and he said that aboriginal housing may be able to assist him. He said that it might take a month or two for this to be arranged. He said that he pays $140 per month by way of child support for his son and had paid nothing for the girls since the Department of Family and Community Services became involved. He has never enquired of the grandmother if she needs any assistance with the girls.
He said that his partner has adult children, but has no contact with them. Asked how he knew that his partner could manage his son M’s behaviour, he replied that he had seen his partner with the children during school holidays. He said that she does everything for them. He said that she knows how to deal with them. He said that if his son steals a car again, he will send him to a boarding school in Town V. He did not know about fees at that boarding school.
Asked about N, he said that he was not sure if the grandmother was doing a good job. He said that he had no concerns about L with her grandmother, but that he had concerns about M. He said that his son’s behaviour could be put down to Attention Deficit Hyperactivity Disorder.
When cross-examined by the grandmother’s counsel, he said that when the children were with him, they were subject to different rules. He said that his partner would enforce the rules. He was unable to say how he could stop the children leaving his home. He conceded that he knew the children had said that they wanted to stay in Town D. He acknowledged that N had been with her grandmother for some time, and said that the child wanted to go to School W. He said that this was because the child was with her grandmother. Asked how he would overcome the children’s wishes to live in Town D, he said the children loved them and he would make them busy. He would send his son to a boarding school.
He said that his partner was not well and had to stop driving for six months. He said that he had sustained chronic kidney damage and had been convicted of mid-range drink driving. Asked about a statement he was not allowed to go to Town D, he said that he was required to report daily. He said that his partner’s children were 26 and 31 years of age respectively. He said that he had stopped drinking in 2010.
He knew that his son accused him of beating him. He said that this was made up by his son so that he (the son) would not have to live with his father. He said that he had no idea why the child would lie.
To counsel for the Independent Children’s Lawyer, he said that he had come to Australia in 1996. He had worked with the same firm for some nine years. He said he goes sometimes to Town D without confirmation to see the children. He said he had been approximately 10 times in 2012 and had spoken to the children’s mother on six or seven occasions. He had seen his son in the street. His son has told him that no-one was at home. He said he has never left the child alone at his mother’s. He takes him to friends where he tries to telephone the mother or grandmother, but he is not always able to contact them.
He leaves Sydney at approximately 1.00 pm on Friday. He had been down on two consecutive occasions once. He wants the children to know their Fijian cultural background, and he can teach them this. In addition, he has an uncle at Suburb X and has, in all, some 20 family members. They see each other at weddings, funerals and dances. His uncle is an elder.
He would try and get his son to a youth group, but has not approached any group or service at this time. He has had contact with the Department of Family and Community Services but said that they did not do much. He said that his son had been at an Aboriginal centre where he was doing well. His son was now an angry boy. He does not know if his son drinks alcohol or smokes. He is not aware of any drug use.
He says that he has three other boys (to another relationship), and the subject children saw those half-siblings in Sydney in 2011. He again said that he did not contact the primary school because he did not know the number. He spoke of a Mr Y, who works at Suburb E Local Court. He said he had Mr Y telephone Town D Public School in 2010 about his son M. He said that he had seen a report for M when in Year 4 and the only name appearing was Clary. He does not know how old his son was when he started high school. When his son stole Ms Q’s car, he says his son was in high school.
He said that he had never been to any of the children’s schools. He again said that the headmaster refused to give him information and had told him that his solicitor had to ring. He said he did not know that his son M had missed over 70 days of schooling. He did not know that M had been suspended for violence.
He said that when the children were with him for one week in 2011 in Sydney, they did not want to return home. He said the children had gone everywhere with his partner as he was working at the time. He said that he speaks to his daughters on L’s mobile and to M on the mother’s telephone. The girls have told him they cannot talk because their grandmother is watching. He did not know about L’s suspension.
He said that if the children were with him, his Aboriginal Liaison Officer would get him housing within a week. He said that his partner had investigated schools and Suburb E High School (or School S) was the school that all three children would attend. He conceded that the children have both Fijian and Aboriginal heritage. He did not know if the children were religious. He had not discussed this with either their mother or grandmother. He said that he was a Seventh Day Adventist. He said that he would decide what was to be done about religion for the children.
He said that if his son M plays Sport U on a Saturday he can take him to it. He said that the children received presents at Christmas and for their birthdays. He said that he did not know if the girls wanted to attend School W, but believed the children should be at the same school.
He said that he had a two bedroom unit with his partner - the girls have a bedroom, M has his own room and that he and his partner have a bed in the lounge room. He said he would be required to give a month’s notice. No lease had been signed since 2003 or 2004. He then conceded that a new lease had been signed in 2010.
It was again suggested that he had a problem with alcohol. He denied he had ever assaulted the mother. He said that he went to a doctor for blood tests for legal reasons and that his partner had collected the report. He never opened it. He said that his partner told him he had to go back to the doctor. He said that he could make an appointment at any time.
He said his application was for all three children. He said that if the children were to remain in Town D, he would want one week with them in school holidays, including Christmas, and one weekend per month because of distance. He said that he would want them to come to Sydney for a week. He said that it is a 16 hour drive to Town D and then the same in return, so that would be 32 hours of driving in respect of each changeover if he collected the children. He said the children can travel by bus. He is not aware of the cost of a child’s fare.
He said that the grandmother came to Sydney to see her other grandchildren. He said that he had only seen the mother’s other children once. He said that he knew N wished to attend School W. She wished to attend as a boarder. If she did this, he said he could collect her from school when she was allowed out.
He said that there was no place in Town D that M could stay other than with his mother. He did not want the girls to continue living with the grandmother, and he does not want them raised in Town D.
He conceded that he had never asked the grandmother how the children were going, and had asked the mother once about M.
He said that his partner would be the primary carer. He said that the Department of Family and Community Services had said that there was no need to pay money for the girls to the grandmother. He said that he did not know if M was on medication.
In re-examination, he conceded that he had been sentenced to home detention. He said that in Town D his son had friends who broke into houses, started fires and who were picked up by the police every day.
That concluded the father’s evidence in the first part of the hearing.
The father’s partner, Ms Q, then gave evidence.
She said she had ceased work at the end of 2009. She said that she had the okay to return to work, but had no plans to do so. She said that she was okay for money. She had money from her mother’s estate.
She said that the father left at 5.30 am for work, and if his workmate is unable to take him, she would drive him. She said that if the children were with them, it would fall to her. She said she would have rules if M became difficult – no Sport U, no going to the city. If he would not cooperate, she said that she would ring the father.
Asked what would happen if M said he wanted to go, she said she would talk to him and promise to take him back to Town D at the weekend.
She had found her car missing on an occasion M was living with the father and her. He had told her that he went for a joy ride. He told the police he had been kidnapped. He said that he had just wanted to go for a joy ride. She said that she had told the grandmother; she had been unable to contact the mother. The mother had arrived on Wednesday night after the incident. The police had become involved and a Constable advised her to let him go with his mother. She said that she accepted that advice.
She said that L had been with them for three weeks in 2010. She said that M must go to school.
She said that they lived in a two bedroom unit and the rent had been increased three times since they had lived there. She said that they could get Aboriginal housing assistance. She had been constantly in touch with Aboriginal Liaison Officers since 2010.
It was put to her that she was driving the father’s application and she denied this. She said that she had not discussed financial matters with Aboriginal Liaison Officers and had not discussed payment of rent.
She said that she had some knowledge of an episode involving the father’s former partner relating to car keys. She had not been allowed to drive. She had collected a medical certificate of the father’s. The doctor had said that she was alright, and she had never looked at the documents. She said that if it had been a serious situation, the doctor would have made contact.
She said that M’s behaviour towards her had always been good. When he had taken her car, she went looking and went to the police.
She said that an aneurism that she had suffered had been caused by stress.
She said that if M was with her that she did not believe that she would be stressed. She would enjoy having the children live with her. She said that her view was not idealistic. She said that in 2005 the children had stayed for over a month.
She said that she was a member of the Seventh Day Adventist faith. She said that she is not supposed to drive, but if necessary, she will do so. She said that if N was playing sport, she would take her.
She said that M had given her and the father photographs. She said that the father had tried to get school reports, but was refused. She said that a person had got the reports for her. She had all three reports for 2010. She told the father to read them. It was put to her that she was endeavouring to replace the mother and she denied this. Asked about the similarity of paragraphs in her affidavit and the father’s affidavit, particularly her paragraph 26 and his paragraph 95, her paragraph 27 and his paragraph 96, and her paragraph 28 and his paragraph 97, she agreed they were in identical terms. However, she denied that she and the father had discussed what to write.
When cross-examined by counsel for the maternal grandmother, she said it was in the children’s best interests that they not continue to live in Town D. She would take them to school and collect them if they lived with her and the father. If they took off, she would go and get them. She said that she wishes to give the children a normal upbringing and take them to church and their sport.
At this point (the beginning of day three of the hearing), Mr A, the father’s Aboriginal Liaison Officer, was interposed by telephone. He said he could provide assistance. He said he worked at Suburb E High School (or School S) as liaison officer and it was one of the better schools in the area. It had an Aboriginal program. So far as accommodation was concerned, he might be able to seek assistance from the Department of Housing on behalf of the father, and could assist with the provision of a bond.
When cross-examined by the mother’s counsel, he said that he was based at the police station. His main task was to assist youth involved, or about to become involved, in criminal activity. However, he said he was not just there in relation to juvenile crime. There were two positions at Suburb E. He spoke of emergency housing for up to six months and said there were no restrictions on who could be accommodated. Later he said that there would be a means test applied, and if not accepted, rental would have to be arranged independently. For emergency accommodation they would be required to pay 10 per cent of wages. The wait can be between three months and two years for emergency housing.
To counsel for the maternal grandmother, he said he had heard of the Indigenous Youth Leadership scheme, and if approved under that scheme, the girls could attend at School W. He conceded that this would be a great opportunity; fees, uniforms and boarding expenses would be provided. He mentioned Town Z High School and said this was where M would like to attend.
To the Independent Children’s Lawyer he again said that emergency accommodation wait was three to six months. He said that he did not arrange housing; he did not work with the Department of Housing. He said that he has spoken to the father two or three times. He said that if a house was located, there could be provision for assistance for a bond.
He said that he could get the children enrolled in sporting activities. He understood that the father was not of Aboriginal descent, but he could have the children involved in Aboriginal activities.
He did not know the entry requirements for School W or for Town Z High School. He said he can get the children into Suburb E High School (or School S) as soon as they get to Sydney. He said he would act as a mentor.
He said he had spoken to M once on 26 October 2010.
Ms Q then continued her evidence. She said that it would be a good idea for the girls to attend School W. She said she had not spoken to the Department of Housing; she was waiting for the outcome of these proceedings. She had not made enquiries as to any financial requirements and she had not looked for four bedroom accommodation in the area.
To the Independent Children’s Lawyer she said that she had not received any treatment for her aneurism. She was not aware if M had Attention Deficit Hyperactivity Disorder, but, if required, she could ensure that he took medication and went to appointments. She identified some photographs depicting the children. She said she had taken some photographs and that the father had taken some, as did his sister, and some were taken in Town D. Asked if one of the girls would go to School W, she said that she would want them to attend the same school.
She said that the first she knew of the father having difficulties with his kidneys was some six months ago. She was told that he suffered from a kidney condition. She said she had spoken to his doctor. There was a realistic prospect that there would be difficulties.
She had been told that a house would be approximately $380 to $400 to rent. Their present rent was $240. She said that her car can accommodate three children. Their present home is a 10 minute walk to Suburb E High School (or School S). She said that she would ensure the children got to sport.
Asked what would happen if M was violent at sport, she said that he would be alright if he was sat down and spoken to. She had never heard M swear; he talks normally and respectfully when with her.
She believes peer pressure is the cause of his misbehaviour. She said that the father could look after the children alone. She knew the mother and had bailed her out in 2008. She said that the children are always sad when returned to Town D. She said that when the mother came to collect M, he had said he wanted to stay.
She had spoken to the doctor with the father’s consent about his health difficulties.
That concluded her evidence (in the first part of the hearing).
The mother was then called.
She said that she had had the Family Consultant’s reports read to her.
When cross-examined by counsel for the father, she conceded that she had an extensive criminal record going back before she met the father. She said that she had been young and drinking and getting into trouble. She said from the time she met the father, they drank every weekend, both beer and spirits. She said there were no drugs involved and later she said they used marijuana every third weekend. She confirmed that the father had hit her in the stomach, but she did not report him because he was not an Australian citizen. She did not tell anyone what happened behind closed doors. She said she kept her problems to herself. She drank whilst she was pregnant.
It was put to her that the allegations made against the father were not true and she said that they were. She denied that when her daughter L was born that she was smoking marijuana. She denied that when M was born that she was both smoking marijuana and using amphetamines. It was put to her that the father had to care for the children, and she said that was only when she was sentenced to imprisonment for three months. She was not aware of how old the children were at that time; she said that her memory was poor because of the alcohol she had consumed. She had some memory, but it was not complete. She said that drug use did not get worse after M’s birth. She said that the father used to go away for a season of work. She denied that there had been an occasion when the father had come home and found the house trashed. She said that when M was born, she was living in Suburb AB.
She was asked about a conviction in 1998 for destroying property and she agreed that this had occurred. She said that she was not using drugs when N was born. She said perhaps there was one incident when she was charged in respect of the use of drugs. She agreed that in July 2000 in Town D she was charged with possessing a prohibited drug.
She said that she was living in Wollongong with the father’s brother when she discovered that the father had had a child by another woman.
She did not recall being imprisoned in Correctional Facility AC. On the first time it was put that M was two weeks old and the father looked after the children. The second time she was in Correctional Facility AD following a conviction on 15 November 2006 for resisting police. She said she had done rehabilitation in Melbourne. She went in 2001, but denied the father looked after the children during that time. She said that her mother had done this. She was in rehabilitation for 11 months and then went back to Town D. She said that the children were being cared for by her mother and aunt.
She had been in a further relationship. They did not take drugs together. She said that relationship had lasted for a couple of years.
She could not recall other occasions of imprisonment. She said the father never looked after the children, and that he never gave her any money. She did not agree that he found N with a burn to her forehead. She did not agree that the father had taken the children with him and had enrolled L in school. She said that she had been to gaol in 2008 for six months as a result of charges of driving whilst disqualified and resisting arrest. She was dealt with and assisted by Corrective Services for poly-drug use – drugs being alcohol, “ice”, cannabis and “speed”.
She said that just after N was born that she took the children and went with a man named Mr AE. It was put that she had men and women drinking and smoking bongs in her home, and that there was no food in the home, and she denied this. She said that she was aware that her mother had said the children had been placed with her in 2008.
She does not agree that the children have had an unstable life.
She said that she was sorry for her convictions. She conceded that she had been charged with stalking for which she received a suspended sentence, and that there were further matters outstanding against her. She said that if she went to gaol, M wanted to go live with his maternal grandmother.
She said that in 2010 she rang the father to come and have a go at M, who had been suspended from school for 20 days. She had asked for help. She said the child had wanted to be with his father. He (the child) went to his father’s for one week. She thought it would help. She said that M loves his father, but there is no bond between them. She said that the father had only been interested since Court proceedings started, and that she had never stopped him seeing his son.
She said that she and Mr AE are still in contact with each other, but he was presently incarcerated.
She said that she did not know M could drive a vehicle. She said that she had come to Sydney to get her son (after the car incident). She said she has a bond with her son. She said that she observed M to have swelling around his nose. Police came to the house and she spoke to the police about the injury. It was her view that the father and/or Ms Q had hit M, and she said they did not care for him.
She had school reports; they had been read to her by her cousin. She had made an appointment with a paediatrician, which was to occur in June 2013. She said that she had not had time to obtain a psychiatric report; there was too much happening in her life.
She said that M had been to a special camp for six months up to September 2011. She said that he did not wish to stay beyond that time.
The mother was questioned about the contents of a report recorded by the Department of Family and Community Services, which was tendered as Exhibit 9 in the proceedings. The mother was asked about the notation that the child had been observed walking around the streets late at night, and the fact that on the 10 November 2012, the mother had been spoken to in a hotel and indicated that she did not know where the child was.
It was indicated that there were 98 entries in the police database regarding M. There was a further notation that on 23 March 2012 M was observed to be drug-affected. The mother said that she had never seen her son affected by drugs. It was put to her that on 5 September 2012, the father had contacted her to arrange a visit. She agreed that he had contacted her, but said he did not see the children. There was an argument about which weekend the father was to see the children. She said there was only one occasion when he came and saw the children. There were no visits in June or August; the only visit that he made was in November.
She said that the children love their father and that she has never tried to keep them away from him. She said that the father should be contacting her.
When cross-examined by counsel for the maternal grandmother, she said that N wanted to attend School W with her other daughters, but L did not want to go. She said that she had an enrolment form for N. She said that it would be a great advantage for both if they were to attend. She said her eldest child was 17 years of age and would be in Year 12. She said the children were allowed to be away from the boarding school at weekends and it would be no trouble for the father to go and see his daughters, if they were to attend that school.
When cross-examined by counsel for the Independent Children’s Lawyer, she said that when she had indicated to the Family Consultant that she did not want the father to see the children, she was angry. She said that she did have a drug problem, but that she was now drug-free. She said that she was waiting enrolment in an anger management course. She said that she was thinking of ending it all. M was treating her badly, associating with undesirable people, with whom she had difficulties. He had stopped taking his medication.
There were difficulties with Court appearances in the Family Court and the Local Court, at the time M was driving her crazy. She said that she could not handle him for longer than a week (at a time). She said that she was a diabetic, but not insulin-dependent. She had had a few hits of “ice”. She was not assessed as suitable for a community service order.
She said that she wanted the children to see their father. She said that M is a lot of trouble and that he will not go to school. She was unsure whether the father would be able to get him to go to school, but not at a Sydney school. She said she thought he might go to the Town Z school. When he came out of camp, she said he was a good kid. He was at the camp at the end of last year (that being the end of 2011). She was not told what M had expressed as his wishes. She said that he was approached by the police and she knew that he had been missing school. He left every morning to go to school and he would come home in the afternoon and then go out.
She had received a letter from Town D High School dated 8 March 2012, which had been read to her. She had received a further letter on 31 May 2012 from the Acting Principal informing her of her son’s poor attendance. She said that there had been a period when she had placed M with carers, a family called AF. She said that the last time she was in school on a regular basis was in the first half of that year. There had been a meeting with the school and he was suspended. The school wanted him to attend for suspension for two hours a day and she believed that he had done this.
She said that when she enrolled her son, she did not provide the father’s particulars; the father was never around.
She confirmed that the subject girls lived with her mother. If she was unavailable, she indicated that she wanted M to live there as well. She did not think that he would be better off living out of Town D.
She gave contradictory answers as to the amount of support she had received; initially saying she had no support, and later saying that she had a lot of support.
She was unable to say that if M remained in Town D that he would be better. She said that she was hoping that if she got the right support it would be all right.
She said that she believed that if M went to live in Sydney, he would steal another car. She said that her son had told her that he took the car to return to Town D. She said that her son would be worse in Sydney than in Town D. She said that she was thinking of putting him back with the AF family.
She said she sees the subject girls every day. L had one little hiccup when she was suspended.
In re-examination to her counsel, she indicated that the father was not a citizen, but was in Australia on an expired visa when she alleged he had assaulted her and that was the reason why she had not reported him. She said she had been in rehabilitation in Melbourne on four occasions and the father had never cared for the children. It was her assertion that her mother and her aunt had cared for the children at that time. She said the father was not telephoning or seeing the children. She said that she was not proud of her convictions and she was sorry. She said that if she had been better, her son would have been better. She said that she would love him to go back to camp and that he wants to go back.
She said that she had spoken to her son on the previous Saturday. He had been in hospital and was released on Tuesday. She spoke of Ms AG, an Aboriginal Liaison Officer, who had been dealing with M since 2012. She said that she had placed M with the AF family in 2008 and he was there for several years. She had taken M back after her last sentence of imprisonment and he was with her for several months before he went to his father. She said that she was worried about Suburb E and the fact that M would steal another car and perhaps hurt himself. She said Suburb E was new to her son. Her main concern was that he would get in with people that would ruin his life.
She said that she was diabetic and took medication, but not insulin.
In response to further cross-examination by the father’s counsel, she said that it was M who had been in hospital; he could not breathe in the early hours of the Saturday prior and she had rung an ambulance. He was taken to hospital and admitted until the Tuesday prior. At present, he was staying with his aunt.
By leave to her own counsel, she said that M had been arrested for aggravated break and enter. She knew he had not been to school for two months. She asked her cousin Ms AH to be with him in an interview with police. She said that he had been bailed into her care and was not to associate with various people. She said that it was very cold in the holding area.
That concluded the mother’s evidence.
The next witness was the maternal grandmother.
When cross-examined by counsel for the father, she indicated that she knew that she had to tell the truth in her affidavit. Having said that she did not drink in paragraph 9 of her first affidavit, she said she now drinks socially, but she used to drink a lot.
She said the girls had come to live with her in 2008. She did not drink around the girls. She said she was worried about the father’s use of alcohol. She said that when he had come to Town D, he was affected by alcohol, but she could not remember when that was.
When asked about an episode where she asserted the father was hopelessly intoxicated, she said she was not intoxicated, but he was. She said that every time he came down to Town D, he was intoxicated. She said this was not made up, but that she was told this.
She said that she did not remember if her daughter (the mother) had hit the subject children. Asked if she could say anything good about the father, she said that she did not know him well, but supposed the children loved him. She said that the children did not want to be with him and were upset. She then asked why did she have to say something nice about him. She said that the children did not pick up her dislike of the father. She said the children had seen the father monthly.
She said she gambles sometimes on poker machines at the ex-servicemen’s club. She said she goes every Saturday for four hours from 6.00 pm to 10.00 pm.
She said she is home every afternoon after school. It was put that on 7 September 2012 the father saw N on the street in Town D. She said she had been told this by L. She had told the father that he could come down. She said that she was being spiteful and she knew N would not be there. She thought he last came to Town D in October 2012.
She said that she lived in a four bedroom home and there were four of them living in the home. She said her friend Mr AJ had his own home. She was just friends with Mr AJ; Mr AJ had two motor vehicles and would drive her to Sydney. She said her two older granddaughters were boarders at School W and had been since the beginning of January 2012. She had seen them in Sydney when she went up there on the bus.
She said that the Department of Family and Community Services pay her to care for the girls under a kinship placement. She said that she had never been in trouble with the legal system.
She said that N has problems in the classroom. A teacher had rung her about it. The child was fighting on the bus. N had been suspended from bus travel. She said L was no problem. However, she then said L loses her temper, and N gets naughty in class, a bit, and the teacher rings her. This had happened on three or four occasions in 2012.
She agreed that she had been in hospital for six or seven days in respect of surgery. She said that her sister looked after her and the girls during that time.
She said she cooks for the girls whatever they want. They make their own breakfast. Her nephew Mr AK is the fourth person in the home. Mr AK has been in trouble with police, she said, concerning a machete.
Asked about documents produced by the school, she was not aware of what was meant by reports that N met indicators for Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder.
She said she thought she had got the NAPLAN results, but was not aware of what they meant. She said that N’s school performance had fallen off.
She said that she had a link with Aboriginal culture. Asked as to the role of the father in Aboriginal culture, she said she did not know.
As to her health, she said she has difficulty with her eyes and control of her diabetes. She has had a coronary bypass, which she believes in some way was related to her diabetic condition. She has been told that her eyesight will deteriorate. She has been told that there is a chance that she will lose her sight. She has suffered from shingles. She says that she complies with medication. She is supposed to be on a strict diet. Her blood sugar readings are much higher, at 11.2, than they should be (desirably 7). She says that she is not following the diet, but that she is injecting. She said that Mr AJ had driven her to hospital. She said the girls had been living with the mother whilst she was in hospital. In Town D, her sister had moved in. She said that her health was failing and it was becoming more difficult.
She said that she had made an application for her two elder granddaughters (not the subject girls) to attend School W. She had obtained the forms and filled them in. She said the fees for those girls are paid by Abstudy. The girls are enrolled in an Aboriginal youth leadership program.
N was interviewed by the Department of Family and Community Service on 22 August 2011. It is recorded that she (N) has a strong personality and was determined to attend School W. Asked what steps had been taken, she (the grandmother) said none. She said, however, that her granddaughter N should go, but nothing had been done to achieve this. At School W the girls can go out at weekends and she said she has travelled to Sydney to see her elder granddaughters once or twice. N had described her grandmother as a good cook, who gives her pocket money and brings her down to talk to her sisters and play Sport AM.
She said that it would be good for the girls to see their father. She said that on the night the father allegedly saw N on the street in Town D, she had put the child in a blue light disco believing she was not allowed out. Someone else dropped her home. She could see that the child may have left the disco.
On 8 April 2011, there was an incident on the school bus where N punched another child. Her bus travel was suspended. The child said that she was being tormented. She said then that her niece drove her granddaughter to and from school whilst she was suspended from bus travel.
She said she goes to the club every Saturday and on those occasions, the girls are with the mother or her cousin. She drops them off on the way to the club. She said she sometimes drinks a beer if she feels like it.
It was put to her that the Department of Family and Community Services reported that there were concerns about her care. It was reported that she was finding it hard and that the children were locked out of the home after school. It was reported that she was playing the poker machines, and at times the children did not know where their grandmother was.
It was put to her that in 2011 the girls had significant absences from school. It was put that on 15 February 2011 L was suspended from school and the police were involved. She said that she thought that if it was necessary, she could cope with all three subject children living in her household for two months.
That concluded the evidence in the first part of the hearing. I then made interim Orders concerning the children, with the girls to remain living with their grandmother, but for M to live with his father and Ms Q in Sydney.
The hearing of the matter resumed on 6 May 2013. On this occasion, I heard evidence from the father, Ms Q, the maternal grandmother and Mr R, the Family Consultant.
Firstly, the father gave further evidence. He said that the children should all be enrolled at the local high school if they were with him. He did mention Town AL Aboriginal School, particularly as a prospective school for M.
When cross-examined by counsel for the mother, he said that he was at home when M ran away. The child had told him that he was going to a Kentucky Fried Chicken (“KFC”) restaurant. He had then received a text message from his son.
He said he has another family in Sydney. Asked if he spent overnights with them, he said “never”. He said most of the time when he visits his other family, he would take M with him. When he does not take his son with him, his partner looks after the child.
He said he had seen his daughters this year once, perhaps twice. He said that he was not aware that his son was with the mother. The child had run away early in the morning and had sent him a text message at about 6.00 am. He had looked for the child. He had gone to KFC and rung other family members. He said he was worried and concerned for his son’s safety. He said he had no idea the child might return to Town D. He found out from the girls that his son had been talking to the mother.
He went to the police. He kept trying to ring his son, and his son told him that he was at Suburb E. Then at about 10.00 am he received a message “I am on my way to [Town D]”. He said he made a decision not to drive to Town D. He said he then visited the girls once in Town D. He had heard that the AF family might again be prepared to care for his son, but he was still not aware who those people are. He said that after coming to live with him his son was very happy in November, and then he had run away.
Asked by counsel for the grandmother about Town AL Aboriginal School, he said there were documents confirming the fees would be paid by Abstudy. There was nothing from the school to indicate that the children, or any of them, had been accepted. He said that when the children “come” (to live with him), he would “fix it all up”. When asked reasons why the children might attend Town AL Aboriginal School, he said that his eldest child had been suspended, but not expelled and he asserted that the girls were suspended most of the time. He had asked his solicitor to contact the school. The children were suspended for over half of the school time.
He was not aware of how many students there were at Town AL Aboriginal School, and he did not know how many girls attended that school. He did not know what sports were available. He conceded that one of his daughters is a representative Sport AM player. He had made no such enquiries at present. He does not know what religion the girls are. He said Town AL is a school anchored in a biblical world view.
He said he takes the girls with him to Seventh Day Adventist events. He was aware that Town AL only provided three years of education. If the girls needed to go beyond that point, he said it would be necessary to discuss the issue. He said the children want to stay in Town D because there are no rules. He said that L will not talk to him, or look at him. Asked how he would parent the children, he said that they would come home on the bus from school.
Asked about his inability to travel, he said that he had no money to fix his partner’s motor vehicle. It was put to him that he could not keep the girls at school if they were with him, he said he could. He said he would make sure they follow rules in his home. He said that if they refused to comply, he would take their mobile telephones off them as punishment and that that would work.
To the Independent Children’s Lawyer, he said that following the Orders made in November 2012, M had come into his care. L had also come with her brother at that time. Later, N came from her grandmother’s for the school holidays. He said that in Sydney they got on well with his partner. He said he had taken L and M to School S (or Suburb E High School) to enrol them. He said that both children appeared keen to attend School S. Subsequently, he took N to the school and she appeared to enjoy it. He then gave evidence that he would try to put them into boarding school at Town AL. He said that if the children remained in Town D, he wanted to spend half school holidays with them. He said he is working full time and has two weeks holidays at present. He said he would arrange movies and trips to the city. He said his partner would supervise. He said he was only asking for holidays; weekends were a very short time and there were travel difficulties. He said that if the children were brought to Sydney it would be okay. Asked about a halfway point, he suggested this would be Town AN.
He said he first knew of Town AL Aboriginal School last November through a church member. He spoke of the girl’s half-sisters who attended at School W. He said that if his daughters were accepted into School W, he would encourage this. He made some enquiries of School W last year. He thought he had made some documents available to his lawyer, and he thought the school was full. He is aware of the indigenous youth leadership scheme, but had made no enquiries about this.
He said he had visited the girls in Town D once this year. Since they went back, he had not seen the girls and had spoken to them on the telephone once. He tried to call them up to three times a week. He said that all three of the subject children have telephones. He has had no contact with M. He had spoken to Ms AP Clary and had tried to speak to the mother, but she hung up on him. He had not been to Town D to look for his son, but had spoken to his sister.
He again spoke of the principal at Town D High School not providing him with information about the girls. He said that L plays Sport AQ; he does not know if this is available at Town AL. He agreed that N is a Sport AM player of some ability. He is aware that N has been suspended from school. He says he can communicate with the grandmother about the girls. He had heard that M was seen in Town D.
Asked if his son was in his care how he would ensure the child did not run away again, he said that he would put him in a boarding school “well away”. He conceded that if the girls were with him that it was possible that they would run away. He disagreed that it was better for them to stay in Town D.
He said the children swear, talk back and scream at him. He said they swore at him for the first few weeks they were with him.
He said that he would put the children into School S (or Suburb E High School) until the boarding school became available. He said that Town AL was the first option. He said that if they stayed in Town D, he wanted half of the school holidays and he would not see them during school term.
He said that he could not see the girls without court orders, but he had not sought any further orders. He said that the girls indicated that they wanted to stay in Sydney. No reference is made to this in the father’s recent affidavit material.
He said that there were warrants outstanding against his son from Town AR Local Court and from Town D Local Court. The charge in Town D concerned the burning of a house, an assault and shop lifting. He said that he has not asked the grandmother for any school reports of the girls.
That concluded the father’s evidence in its entirety.
Ms Q was the next witness recalled.
To her counsel, she said that she and the father had taken the children L and M to School S (or Suburb E High School) in 2012. She said that she had also enrolled N in that school, who was not present at the time of the visit. She said that L could be put into Year 7, as indeed could all three children, subject to an assessment. She had telephoned schools in Town D. There had been discussions concerning the school at Town AL. She said this could be best for M as he was interested in their subjects, and good for the girls, particularly N. She said that the children were not overly keen on authority. The decision about schooling was not set in concrete. She had spoken to the principal of Town AL. She had spoken to police about the children. She was informed that M had been seen in Town D, and had, indeed, been spoken to by police, but not apprehended. She believed there was a charge of assault causing grievous bodily harm. She said that so far as she was concerned, the girls attending School W was still a possibility.
To counsel for the mother, she said that she was not aware of the fees payable at Town AL. She was aware of assistance for Aboriginal students. She said that the church would provide assistance. She denied she was making things up. She said that funds could be found because they were needed. She said the father was providing support for his other family and support for M.
She said that she would be caring for the children when the father was working. She said he now leaves for work at 5.30 am and returns at 4.30 pm. The father does not have a license.
She said that she would be the emergency contact for the children. It was put that she had previously said that she and the father could prevent M running away if he were in their care and yet he had done so on 17 January 2013. She said that she was not aware of anything, nor did she pick anything up that he may run away. She said that she would be aware on the next occasion if the child were to live with them.
To counsel for the grandmother, she said that she could not travel to Town D because her motor vehicle was out of registration and needed mechanical repairs. She was then asked about financial matters and said she could get $20,000 per year in respect of school fees. She identified a person Mr AS, who she described as a solicitor. She then said that they thought School S (or Suburb E High School) was the preferred school, but if the children were not to settle then Town AL was an option. She said the children cannot read. She said there was private tutoring available at School S at no cost. She said that there was no antagonism between the girls and their father and herself. She said that when the children got what they wanted, they were happy. She said that she would do her best.
To the Independent Children’s Lawyer, she said that M has artistic talent. She had collected M from Town D after the Orders of November 2012. L came at that time as well. She said that L had said she was suspended at the time. The children did not say they wanted to go back. She said that N was collected on the 27th (of December 2012).
After M had run away, they thought that a boarding school might be the answer. They had discussed Town AL with the children. She said she and L had seen a Mr AT regarding the indigenous education / youth leadership programs. Mr AT indicated to her that he would speak with the Department of Family and Community Services, but did not do so.
When she and the father spoke to school authorities at School S (or Suburb E High School), the sports mistress was present. When all three children lived with the father and her, the girls would be in one room and part of the lounge room would be sectioned off for M. She said the children could walk to school; it would take about 15 minutes. The school had apparently indicated that they had some person who could collect them.
Further to counsel for the grandmother, she said she was not aware that there was no record of a solicitor of the name she had nominated. She said that he did exist and that she had said what he had wanted her to about his identity and occupation in the event of the matter being raised in Court. It was put to her that the situation regarding payment of school fees was “pie in the sky” and she denied this.
Further to the Independent Children’s Lawyer, she said that she went to Centrelink with the children and was told that she should return when something concrete was known. The father had not been to see Mr AT. She said that no application had been made for housing as yet, but the Suburb AU area would be her choice.
In re-examination, she said that the money from Mr AS would be $20,000 all up. She said that if the children were not to live with them, they would stay where they are. If they had the children with them, they would obtain accommodation elsewhere, but not housing commission accommodation. She said that she had only taken the children’s mobile telephones off them on one occasion. She said that she had been told by police that it was okay to take the phones off them, but did not do so.
That concluded the evidence of Ms Q.
The maternal grandmother was then recalled.
In answer to counsel for the father, the grandmother conceded that she could not see properly. She said she did not understand the contents of the girl’s school reports for the end of the year 2012. Those reports were at her home. She had not brought them with her to Court. She thought that L had missed two or three days of school and that N had been suspended for five days for fighting. She said that she and the mother had talked about L going with the father when he collected M. She said that L went to keep M happy. She said that L was not suspended at that time and should have been at school. She could not remember if she had spoken to the school about it.
She said that N reads all right; she was not sure about L. She said there was an appointment the following day (8 May 2013) with a paediatrician.
She said she wants the girls to attend School W. She said the school was effectively full and the girls would only get in with good school reports. Asked about the reports for the end of the year 2012, she said that she could not understand them. She said that N was in Year 7 and L in Year 8.
She said that she had no concerns when the children were with the father. She had rung them. She was a bit worried and rang a couple of times every day on occasions, and otherwise, every few days. She said then she thought the children rang her.
She said she gets a kinship payment from the Department of Family and Community Services of $1,000. There was confusion as to whether this was per week or per fortnight for both girls. She said that all up she received by way of benefits and payments from government sources approximately $2,200 per fortnight. She does not know what she would receive if the girls were not living with her. She said she has small savings, but the money is spent on the children and on food. She said that both children pay Sport AQ. She gives them money. Sometimes she has a flutter on the poker machines. She said that she has been on the pension for some time caring for older grandchildren. She said that she is not religious. She said that she undertakes no Aboriginal activities with the children. She takes medication and injects insulin twice daily. She said the girls were not very good at telling time. There is no computer in her home.
She said that N had reported that Ms Q made her cry because she (N) had been talking about other children. She said the father loves the children, but she does not know if he cares about them. She said that she wants what is best for the children. She is worried that they are not doing well at school. She had not made enquiries about tutors for the children.
She said that L has never mentioned School S (or Suburb E High School). She said that she does not know what the children want. She said that she would bring them to Sydney, if she had to, once a month. She said the father has always returned the children. She thinks the girls told her about M running away. She had seen him in Town D in February 2013. He had come to her home and she had not told police he was there. She knew he was with her sister Ms AP Clary in Canberra. She said that she believed M and his mother were currently together in Canberra, but she did not know where. She does not know about her daughter going to gaol.
To the Independent Children’s Lawyer, she said that N was in Year 7 and L was in Year 8. She then said that L was in Year 9 this year. She was not sure, but she thought L had been in Year 8 in 2012. She did not recall seeing the school principal.
She said that L was still at school when she (the child) came to Sydney with M. She said that she was more worried about her grandson.
She said that she had forgotten N’s orientation day for school and did not attend. She had not thought to involve either of the girls in counselling. She said that she did not know about School S (or Suburb E High School), or Town AL. She recalled taking N to the Department of Family and Community Services. She said that N had said that she wanted to go to School W, but that that is no longer the case. She said that she wanted the child to go to School W next year (2014). She had, however, made no enquiries of the school.
She said that she had never thought to ask the father if he would want to watch N play Sport AM in Sydney. She reports that N has told her that she wants to stay where she is.
As to the appointment with a paediatrician, she said this was made in November 2012 and that it was the earliest appointment she could obtain.
She said that the mother had been gone for over a month.
She did not speak to Ms Q about the allegation of mistreatment of the girls. She said that she gave the girls considerable amounts of money for them to buy what they want. She could not say how long she had been receiving approximately $2,200 per fortnight in the way of benefits. She said she had received no assistance with financial planning.
She was not aware of how the girl’s grades were, or how grading worked.
If the girls were not to attend School W she said they should remain where they are at school. Again, she said that she does not understand reports from the school. She said that she would arrange tutoring for the children. She does not know N’s favourite subjects.
She said the children were not distressed when they were returned to her from their father’s. She said that if the girls were to live with the father, she wanted all school holidays. She said that she was frightened the girls would run away from their father’s, although she conceded they had not run away from him before. She said that they had never run away from her.
In re-examination, she said that neither girl had indicated that they wanted to go to School S (or Suburb E High School) to her.
That concluded her evidence.
Mr R, the Family Consultant, was then called.
He conceded that he did not interview the children with the father. He said that this was his normal procedure. He said the event described by M, where he alleged he had been assaulted by his father, may never have occurred, and that the grandmother and mother may have supported beliefs of the children. He said that the children were likely to be strongly aligned with them (their grandmother and mother). He doubted that being told what was to happen by the Independent Children’s Lawyer would not cause them to accept a situation. He was concerned that with lack of involvement with the father, it would be difficult for the girls to cope with a move into their father’s care.
He said that the girls knew that the time they spent with their father was for a limited period.
He said that each option, that is, living with their grandmother or their father and his partner, had its own risks. He could not say which was best. He said there was nothing about the girls to suggest that they were developmentally delayed or compromised. However, they were not gifted. They were smart enough to know what needed to be said to obtain a desired result.
To counsel for the grandmother, he agreed that change would cause difficulties and M’s behaviour would bear this out.
To the Independent Children’s Lawyer, he indicated that he could not put forward a best option.
This then concluded the evidence of the parties and the witnesses before me.
What do i make of the parties and their witnesses?
The father gave his evidence in a detached and unemotional manner. He clearly believes that all three children are better living with him and Ms Q. He identifies Town D as a place where the children will not flourish.
I am concerned that his proposals are not at all well thought out. He is in no doubt that if all the children, or any of the children, are to live with him, he will have no difficulty in caring for them and in ensuring that they behave appropriately. Notwithstanding the fact that his son has run away and is at the present moment whereabouts unknown, he sees no difficulty in ensuring that if M was again placed in his care his son would remain with him and not run away.
His proposals for education for the children are also by no means clearly thought out or definite. In the first part of the hearing, he indicated that the children should go to the local high school. He is not certain as to the educational standard of any of the children. He insists that he has not been able to communicate directly with the children’s current schools concerning the children. I am not convinced that this is so. In any event, he does not appear to have received or seen report cards for the children. He is aware of the children’s absences from school.
Dealing with M, I am left with the most uncomfortable feeling that he, together with his mother, is determined to simply ignore any Orders of this Court (and it would appear any orders of any other Court) and do entirely as he wishes.
In those circumstances, I find it most unpalatable that the mother should seek an order for M to live with her.
So far as the father is concerned, and accepting that it is his wish that M should live with him, I am of the view that nothing that this Court can do by way of an order requiring the child to live with the father, or any other form of parenting order, will achieve this result. I do not accept that it is the role of this Court to make or continue an order simply in the hope that something might come about if I do so. To my mind, and particularly if, as is urged upon me by the Independent Children’s Lawyer, I discharge the Recovery Order, then the means by which M might ever come into his father’s care again, are absolutely unable to be foretold. M is a young man who does what he pleases, when he pleases.
At the conclusion of the first part of this hearing, the father and his partner made a claim to me that they had no doubts that if M was committed to their care, they would be able to care for him, exercise proper control over him and prevent him from running away. The issue of M running away was raised at that stage because on a previous occasion, M, then aged approximately 11 years old, had taken Ms Q’s car and had driven in a westerly direction until damaging the car and returning and surrendering himself to police. Therefore the spectre of him running away was real at the time the Orders were sought at the conclusion of the first part of the hearing in November 2012.
I did make the orders pressed upon me at that time by the father and the Independent Children’s Lawyer and the result was, as I have said to the point of boredom, that M ran away from the father’s household in January 2013.
In light of the foregoing matters, I have reached a decision that I will not make an order in favour of the mother in respect of M. She has chosen to no longer participate in the proceedings. She has been, or has made herself, not contactable by those who continue to act on her behalf. Without being aware of her present situation and the arrangements she would propose for M, I will not make any order in her favour.
So far as the father is concerned, to leave in place an order or to make a fresh order for M to live with him, is, to my mind, of no real use or benefit. The evidence that I have is that the father cannot prevent M from running away, if M chooses to do so. This is despite the fact that, as put to me with real force by the father’s counsel, M appeared to be interested in attending School S that is suggested by the father.
To make an order for M to reside with his father would be an exercise of hope over reality. In all the circumstances of this case, I am not satisfied that I should make any order in respect of M. I would thus propose to discharge all Orders in force affecting him.
This would, of course, mean that each of his parents would have parental responsibility for M until he attains the age of 18 years, by virtue of section 61C of the Act. Thus, both of M’s parents have standing if, for example, there was a requirement that a parent be involved in bail arrangements for M. To my mind, this is the appropriate way to deal with and dispose of the proceedings so far as they relate to M.
So far as the girls are concerned, it is, in my view, imperative that an order be made for the children to live with one party and for another party to have time with the children – that is, as between the father and the grandmother. I am satisfied that it is impossible, having regard to the significant distance between the households of the father and the grandmother that there could be equal time, or anything approaching it. There is no suggestion that the father or grandmother will move so as to place him or herself in closer proximity to the other. I must therefore deal with any orders for time to be spent on the basis that I recognise the real difficulties that exist in this matter.
I am satisfied that I must therefore make a determination as to where the children should live and then make orders for time with the other party.
The girls have lived with their grandmother since they were the subject of a kinship placement by the Department of Family and Community Services. They have lived in Town D all their lives.
It is the father’s case that the girls are doing poorly in the grandmother’s household, and that it is imperative that they be taken from her and placed with he and Ms Q, so that they can live in a situation where their physical and emotional needs can be fully met.
The father’s counsel makes the point that the grandmother has no realisation or appreciation of the girls’ schooling needs. I am satisfied that the grandmother has difficulty in understanding the needs of the girls in this regard. On the evidence I heard, there was uncertainty on her part as to the years in which the girls were presently enrolled at school. She said that she had not understood the meaning of the girl’s school reports for the end of the year 2012.
I am satisfied that the grandmother is not well-educated herself. I am satisfied that she has a far-from-perfect appreciation as to what is required to support both girls in their schooling. There is no doubt that the girls, and particularly N, have had difficulty with school authorities and have been the subject of suspensions.
Their grandmother does not appear to be particularly concerned or surprised by their suspensions from school. There can be no doubt that the situation in the grandmother’s home is far from ideal for these girls.
I am also concerned as to the state of the grandmother’s health.
The alternative is that the girls be removed from the grandmother’s care, with whom they have spent a significant portion of their lives, and be placed with their father.
I found the second report of Mr R of significance in dealing with this issue.
Much was made by the father’s counsel of the fact that the father had never been seen with the children by Mr R. True it is that the second report was a report ordered to ascertain the wishes of the children. As I understand it, no suggestion or request was made that an interview be conducted between father and children. I therefore find it difficult to accept any submission in this regard at this time.
The reason Mr R advanced for his statement that he foresaw difficulties for the girls adjusting to living with their father is that they saw his lack of involvement in their earlier lives as a major stumbling block. The father has put to me that he has been unable to communicate with the children because the mother and grandmother have made this impossible by blocking his telephone contact with the children. Further, he asserts that on occasion when he has gone to Town D, the mother and grandmother have ensured that the girls, particularly, have not been in Town D for him to see them.
Whilst accepting that this may, at least in part, be true, I am not satisfied that the father has done all he could have to ensure that he sees the girls. This leads me to another observation that I am compelled to record. On hearing the evidence of the father and his partner, I have come to the view that it is Ms Q who is not merely supporting the father in his applications in respect of these children, but is in fact, the person driving the father’s application. It was noticeable that when instructions were being sought during the course of the hearing, counsel for the father appeared to take those instructions from Ms Q, rather than from the father himself.
Counsel for the grandmother put two axioms to me. The first of those was “if it is not broken, don’t fix it”. Certainly, this is not a situation where I am satisfied that there is nothing that could not be better for the future of these girls, if they remain living in Town D. The grandmother, in my view, is unaware, particularly of the educational requirements of these children, and I am further satisfied that her notions of discipline are, indeed, very lax or casual. I am satisfied that it is effectively a situation whereby there is little or no discipline applied to either of these girls, who are left, very much, to their own devices, and are left, very much, to make important decisions concerning themselves and their futures without a great deal of input from significant adults in their lives.
However, there was a further statement by her counsel to the effect of “even if it is broken, do not take it to be fixed, unless the person you take it to can fix it.” The father (and Ms Q) are put forward by the father’s counsel and the Independent Children’s Lawyer as the only person or persons who can ensure that both girls enjoy a better lifestyle in which they would have structure, guidance and discipline.
However, the father, who quite properly points out the shortcomings in the grandmother’s household, has within his own domestic situation some real difficulties.
In the course of the second part of the hearing, I was greatly concerned about the confusion evidenced by the father and Ms Q as to the schools that were considered appropriate for the children. There had been in the first part of the hearing talk about the girls attending School W, a Catholic boarding school, but this came to nothing. I am satisfied, on the evidence I have heard, that the girl’s academic achievements are such that they would not be accepted into that school. There was also talk of, at least, M attending a Seventh Day Adventist boarding school, Town AL, which is in rural New South Wales.
In submissions to me, it was made clear that the school which the father favoured, and which he now said all three children would attend if they were with him, was School S. This was clearly the school to which M and L had been taken to discuss possible enrolment. The father says that the two children had exhibited, or evidenced, some excitement at the prospect of attending that school. This appears to be somewhat contradicted by the fact of M running away from his father’s home.
The father also has, to my mind, formed the view that the order in which things need be done is that the girls should come to live with him, and once they are with him then he can attend to making arrangements as he wishes. This observation applies to the enrolment of the children at a school or schools.
It also relates to the father’s expectation that the question of accommodating the family unit of himself, his partner and two or three children can be resolved, because once the children are with him he will simply make an application and be granted accommodation. I am aware that Ms Q indicated that if the children were living with them, they would make arrangements for better accommodation. However, I am not told how this is to be accomplished. It was indicated to me that they may have to accept accommodation that may mean the children could not attend School S.
I accept what is put to me by the father’s counsel in respect of the girls having stayed with him for a significant period of the December 2012 / January 2013 school holidays. The father’s counsel suggests that this means that the girls are content to stay with the father. So far as I am aware, on the evidence before me, this is the longest period that the girls have spent with their father. I acknowledge that N spent a longer period of time, because she chose to accompany her brother when he came to Sydney in accordance with my interim Orders. It is said that she made that choice so as to endeavour to settle her brother in. That does her credit.
However, there is a significant difference between the girls spending time with the father, knowing that they are to return to their grandmother at the conclusion of that time, as against spending time with their father for an indefinite and indeterminate period of time, broken only by time with their grandmother during school holiday periods.
The question then in respect of these two children is stark. Do they stay in Town D where it is conceded that their living arrangements are far from ideal? Or do they come to Sydney in the hope that in the father’s household life will be better, and they will have their needs attended to in a fashion superior to that available to them in Town D?
The evidence of excitement and apparent sense of attending a new school does not overcome what I perceive to be the difficulties for these girls if they are taken from their grandmother and placed with their father. The girls have made their wishes clear. They wish to remain in Town D. I am not able to predict with absolute certainty if the girls would endeavour to run away from their father, but it is clearly the case that the girls have indicated they might do so and, having regard to the actions of their brother, I cannot dismiss the possibility that if placed with their father against their wishes that the girls would run away. I am concerned as to the standard of care and preparation for adult life provided for the girls in their present situation in Town D. However, this is not a case of competing ideal households. Both households have their shortcomings.
I am satisfied that even if I accept that the father’s proposals for these girls are well-motivated, the father is not as well organised or child-focused as he would wish me to accept. I am satisfied that there is a good deal of ill-feeling between the grandmother on one side and the father and Ms Q on the other. I am satisfied that the father sees absolutely no benefit or worth in the grandmother caring for the children. He is satisfied that only he can meet the needs of the children, with the assistance of Ms Q.
All adults in this matter appear to me to have difficulties with their physical health. The grandmother is diabetic and has had other significant health problems. She produces no real evidence as to her conditions.
Both the father and Ms Q have provided very short reports from a medical practitioner indicating that their health is, at least, satisfactory and such that they can care for the children.
It is trite to say that this is a difficult decision. It is one which will affect the lives of these young girls in the immediate and, at least, medium-term future. However, on balancing all the matters that I have endeavoured to deal with, I have come to the conclusion, particularly having regard to the girls’ ages and their expressed wishes, and endeavouring to identify the difficulties that placing them with their father could cause them, and acknowledging the less than desirable situation that they find themselves in in Town D, that the girls should remain living with their grandmother in Town D. I am satisfied that this will enable the girls to maintain the relationship they have with the most significant adult in their lives. I am further satisfied that this is an appropriate situation and arrangement for the girls, notwithstanding the element of risk that exists for them in their grandmother’s home because of her particular difficulties.
As the children are to live with their grandmother for the reasons I have endeavoured to set out, I am of the view that she must be the person to have sole parental responsibility for the girls, and I will so order. However, I will require that the grandmother notify the father of all decisions that are taken concerning the long-term welfare of the children, such as their education, their health, their sporting activities and any difficulties which they may encounter.
I turn then to the time that the children are to spend with their father. I have had regard to the matters I have set out earlier in these reasons for Judgment, arising out of section 65DAA of the Act. Clearly, the distance between households and time of travel are of real concern and difficulty in this matter. I am satisfied that the father’s time with the girls must therefore be focused around school holiday periods. It must also be recognised that the girls should have the ability to spend some holiday time with their grandmother and social group in Town D.
I would propose that the periods of time spent with the father during school holidays would be exercised in Sydney. The father should spend time with the girls during the short holiday periods between terms 1and 2 and 3 and 4. Such time, having regard to the distance to be travelled should be for a significant portion of each of those holidays. The children should spend the holidays falling between terms 2 and 3 with their grandmother.
So far as Christmas holiday periods are concerned, I believe that the father should have a period of three weeks during these holidays.
The father is of the Seventh Day Adventist faith. My understanding is that that faith does not celebrate Christmas as a significant religious occasion. However, I believe that it would be appropriate for the father to spend halves alternating between first and second half of that long school period. The first half would include Christmas Day.
In addition, and notwithstanding that the father was unsure whether or not he wished to have time during school term if the girls remained living with their grandmother in Town D, I propose to order that the father have time with the girls on the fifth weekend of each school term. The weekend time should be spent in Town D or its surrounding area, as to return the children to Sydney and have them taken back to Town D would effectively occupy the whole of the weekend.
What I propose, as to school holiday time, is that the father should collect the children from Town D at the commencement of each holiday period, thus ensuring that his time with the children commences, and then the grandmother should collect the children from the father at the conclusion of each period, thus ensuring that the girls are returned to Town D. I would imagine and understand that the father would travel to collect the children with the assistance of Ms Q. So far as the grandmother is concerned, I would understand that she would travel either by bus, or more probably, she would be driven by a male friend to whom she could make funds available for petrol in respect of travel and accommodation that was necessary.
The grandmother has disclosed that she has an income of approximately $1,100 per week from various sources. As my orders will leave the children with her, I would assume that she would continue to receive approximately the same amount of money for the foreseeable future. I am thus of the view that the grandmother should participate in the expense of the children travelling so as to spend time with the father.
However, as I have said I would require that the fifth weekend of term periods of time be spent only in the Town D area, and to give effect to that situation, the father would collect the children from the grandmother’s place of residence at the commencement and return the children to that place of residence at the conclusion of that time.
If, for whatever reason, the father is unable to attend for any period of time provided for in these orders then he shall give the grandmother at least 14 days notice that he will not be attending for the purpose of spending time with the girls.
I then propose to order that the father have telephone communication with L and N on Thursday of each week, with the father to telephone the grandmother and the grandmother to make sure her telephone is able to receive an incoming call and, further, to have the girls available to speak to the father.
I will also order the grandmother to authorise the girls’ schools to provide to the father copies of school reports, notices and photographs concerning school activities.
I will order that the father and/or Ms Q be entitled to attend school activities and sporting events of the girls.
I will order that the father and the grandmother keep each other informed of their residential addresses and telephone contact details, and that they notify the other of any change within seven days.
Finally, I propose to discharge all existing Orders and make a fresh suite of orders. This will mean, so there is no misunderstanding, that there will be no Orders on foot in respect of the child M.
The orders that I make are as set out at the forefront of these reasons for Judgment.
I certify that the preceding three hundred and eighty-two (382) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 1 July 2013.
Legal Associate:
Date: 1 July 2013
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Jurisdiction
-
Procedural Fairness
-
Costs
0
2
0