Cowles and Cowles and Madden - [2008] FMCAfam 1091

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COWLES & COWLES & MADDEN

[2008] FMCAfam 1091

FAMILY LAW – Children aged 10, 7 and 3 – applicants children’s maternal grandparents – allegations mother has neglected children – the two older children regularly absent from school – whether mother’s parenting likely to expose children to risk of psychological harm as a result of exposure to neglect – applicants seek orders that would see children living with them – benefits of children having meaningful relationship with mother – separation of siblings – best interests.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 64B, 64C, 65C

Re K (1994) FLC 92-461
Godfrey & Sanders (2007) 208 FLR 287
Goode & Goode (2006) FLC 92-286
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712

Applicants:

MR COWLES & MRS B COWLES

First Respondent:

MS N COWLES

Second Respondent:

MR MADDEN

File Number:

ADC 3996 of 2007

Judgment of:

Brown FM

Hearing dates:

18 & 19 August 2008

Date of Last Submission:

19 August 2008

Delivered at:

Adelaide

Delivered on:

15 October 2008

REPRESENTATION

Counsel for the Applicants:

Mr Eid

Solicitors for the Applicants:

Calderwood Atkinson

Counsel for the First Respondent:

Mr J Bowler

Solicitors for the First Respondent:

Dixon Gallasch

Counsel for the Second Respondent:

Mr Madden in person

Counsel for the Independent Children’s Lawyer:

Mr McQuade

Solicitors for the Independent Children’s Lawyer:

Adey Lawyers

ORDERS

The mother deliver up the children [X] born in 1998, [Y] born in 2000 and [Z] born in 2004 to the applicant maternal grandparents by 17 October 2008.
Thereafter the aforesaid children live with the maternal grandparents, who shall be responsible for making all major long-term decisions in respect of the aforesaid children.
The mother spend time with the children as follows:
(a)From midday on 24 December 2008 until midday on 25 December 2008;
(b)From 3:30pm on 9 January 2009 until 9:30am on 17 January 2009.
(c)On alternate weekends commencing in term one 2009 from after school on Friday until the commencement of school the following Monday;
(d)Commencing with the end of term one school holiday in 2009 for half of each school holiday period.
(e)The applicant maternal grandparents inform the mother in the event that any of the children suffer such illness or accident which requires hospitalisation or long-term medical treatment.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3996 of 2007

MR COWLES & MRS B COWLES

Applicants

And

MS N COWLES

First Respondent

And

MR MADDEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern three generations of the one family. That family is now hopelessly and perhaps irremediably divided. As a result, this is a difficult and sad case, which presents no ready or obvious solution. Whatever is the outcome, it will be problematic for the children concerned.
Mr Cowles and Mrs B Cowles “the applicants” are the maternal grandparents of [X] born in 1998; [Y] born in 2000; [Z] born in 2004; and [D] born in 2008.
The mother of these children and so the daughter of the applicants is Ms Cowles “the mother”. She is the first respondent in the proceedings.
The father of [X] and [Y] is Mr Madden (formerly Smith). He is the second respondent in these proceedings.
The father of [Z] is Mr B. He knows of these proceedings but has taken no formal part in them. Until recently, he was serving a prison sentence.
There is considerable controversy regarding the identity of [D]’s father. The mother says he is Mr S, who is also the father of her presently unborn child.
The applicants believe that it is impossible for Mr S to be [D]’s father, due to the date on which Ms Cowles and Mr S met for the first time and their (the applicants’) scrutiny of medical records pertaining to the mother’s confinement and [D]’s birth.
Rather, the applicants believe that [D]’s father can only be Mr H, whom they regard as a violent and criminal person, who poses a serious threat to the wellbeing of the children concerned.
Around about the time that the mother was involved with Mr H (May to July 2007), the applicants and Ms Cowles fell out and have spoken little, if at all, in the period since. As a result, the applicants were not told of [D]’s birth and have never met him. Given the lack of relationship between [D] and the applicants and his tender years, these proceedings do not directly concern [D].
It is the applicants’ position that, over many years, the mother has been a marginal parent, who has struggled to discharge the necessary responsibilities entailed in caring for children of the ages of [X], [Y] and [Z], particularly in ensuring that they are kept clean, attend school regularly, are properly housed and kept safe from harm. Above all, that the children are loved and properly supported emotionally.
The applicants say, as a result of the mother’s deficits as a parent, they have been closely involved in parenting [X], [Y] and [Z] since the dates of each of their respective births. In so doing, they have represented an essential “safety net” for the three children concerned. Over the years, Mr and Mrs Cowles Senior say their home has become a familiar haven for the children, in which they have felt secure and loved.
From the grandparents’ perspective, the mother’s decision to reinvolve herself with Mr H, whom they regard as inherently antisocial and so a menace to children, was the last straw in breaking their willingness to be an ongoing “back stop” in the parenting of the children. Essentially, given what they perceived was their daughter’s irresponsible and selfish behaviour, they felt they could no longer support their daughter’s ongoing parenting of the three older children and believed they would be negligent grandparents if they did not intervene and offer their own home as the children’s place of residence and they, themselves, as the guardians for [X], [Y] and [Z], as they developed towards maturity.
Necessarily, the grandparents’ stand in regards to [X], [Y] and [Z] has created a schism in the children’s family. The mother acknowledges some past failings in her care of the children but asserts, with community support, she is getting her life in order and making a better fist of being a parent. She is now suspicious of her parents, whom she mistrusts intensely.
The mother’s counsel, Mr Bowler, argues it would be a draconian step indeed for the court to remove the children from the mother who, although perhaps emotionally needy and prone at times to make poor decisions, has nonetheless been a constant presence in the children’s lives to date. It is undoubtedly the case that the three children concerned have lived far more with their mother than their maternal grandparents, a situation which is mandated by a current interim parenting order made on 27 September 2007.
In Mr Bowler’s submission, a change in the children’s residential arrangements, at this time, could only deepen the divide in the children’s family and also ensure that [X], [Y] and [Z] have no relationship with [D] and their soon to be born half sibling, which in the longer term cannot be said to be in the best interests of any of the children concerned.
Mr Madden and the mother were involved in earlier proceedings regarding care arrangements for [X] and [Y] in the Family Court of Australia at Adelaide. These proceedings were consensually resolved on 5 February 2003 with orders which saw the children living predominantly with their mother and spending extended and regular periods of time at weekends, during the week and school holidays, with their father.
Mr Madden did not formally take part in the proceedings before me. He was, however, present in court during the hearing of the case and is now closely aligned with the position adopted by Mr and Mrs Cowles Senior. Mr Madden was also interviewed by Mr McDonagh, a family consultant who prepared a family assessment report for the court.
It is Mr Madden’s position that the orders of February 2003 did not proceed smoothly. Rather, he asserts that he was able to see [X] and [Y] only subject to the mother’s whim. It is also his position that the mother made unfounded allegations that he had subjected the children to abuse in order to undermine his strong relationship with them and to ensure that her parenting did not come under scrutiny.
Mr Madden was described by Mr McDonagh as being “worn down and despondent” as a result of his previous actions against Ms Cowles in this Court and the Family Court. He said as follows:
“I’d love the kids to be with me full-time but that’s unlikely because I have been fighting for them for years and it never happens … Being with Mrs and Mr Cowles is the next best option”.[1]
[1] See family assessment report at p.8
It is the grandparents’ position that they will ensure that [X] and [Y] have some proper form of paternal relationship with their father. Something which they believe the mother herself is unable to do because of her antipathy for him.
The grandparents also believe that [X] and [Y] are close to their father and are keen to extend their relationship with him.
Mr Madden goes along with the position of the applicant grandparents and believe that the home of Mr and Mrs Cowles Senior provides the best option for [X] and [Y]. He told Mr McDonagh that he believes the children “… will have a good life there and will go to one school”.[2]
[2] Ibid at p.9
Mr B, the father of [Z], is not directly named as a party to these proceedings and has filed no documents either. There have never been any formal orders between him and the mother regulating the arrangements for [Z]’s care. It is the position of both the mother and grandmother that Mr B has spent no time at all with [Z] and, as such, any time the two spend with one another needs to be supervised, particularly given that Mr B was released from prison only in June of 2008.
Mr B attended court briefly on 18 August 2008, after having been formally notified of the proceedings. He told me that his preference was for [Z] to live with his grandparents. My impression was that he is not currently well disposed towards the mother.
It is the mother’s position that both Mr Madden and Mr B have lost any entitlement to have their views canvassed, about appropriate arrangements for the children, by reason of their failure to file material in the case and, particularly in Mr Madden’s case, by his failure to expose himself and his past parenting practices to rigorous scrutiny through cross examination.
Given its previous involvement with the family concerned and the allegations of neglectful parenting of the children raised against the mother, on 27 September 2007, the Court issued an invitation to the Minister for Families and Communities to intervene in these proceedings.[3]
[3] See Family Law Act 1975 at s.91B
The Minister declined this invitation in late October 2007. However, because it was understood that the Riverland Office of Families SA had received a Notification of Child Abuse arising out of the children’s exposure to Mr H, in [B], in June 2007, the Court made a further order pursuant to s.69ZW of the Family Law Act 1975 requiring the Department to provide it with any notifications regarding abuse allegations pertaining to the children; any assessments arising from the investigation of such notifications; and any findings or reports relating to the investigation of such notifications. This order was made on 17 October 2007.
As a result of this order, on 6 November 2007, the Department for Families and Communities provided a brief report regarding its involvement with the family.[4] This report indicated that Families SA had received 12 child protection notifications, in respect of the children, since December 2000.
[4] See Exhibit 3
In particular, on 26 June 2007, the Department was notified that Mr H, who was described as the mother’s partner, had “cut off his home detention bracelet and absconded with Ms Cowles and the children.” At the time, Mr H was reportedly on bail in respect of charges of unlawful sexual intercourse with a child under the age of 12.
Mr H was subsequently arrested and has been remanded in custody since. As previously indicated, Mr and Mrs Cowles Senior express considerable scepticism that anyone other than Mr H can be the father of [D], given the duration of human pregnancies and the likely date on which the mother and Mr H ceased their relationship due to Mr H’s incarceration.
[X], [Y] and [Z] were in the care of their maternal grandparents during the mid year school holiday in 2007. Initially, the Department advised Mr and Mrs Cowles not to return the children to their mother, whilst she was living in [B] with Mr H. Later, on Mr H’s arrest, Department officers advised the grandparents to return the children to the mother’s care, no doubt as a result of her continuity in parenting the children and the fact that she was their mother.
The grandparents complied with this advice. However, they remained gravely concerned about the wellbeing of the children, particularly given that the mother had removed them from the [E] area in May 2007 to pursue her relationship with Mr H. The grandparents have lived in [E] for many years and had assisted the mother to obtain rental accommodation near to their home.
In the minds of Mr and Mrs Cowles Senior, the mother’s actions in this regard were the height of irresponsibility, particularly as the mother later “parked” the children with them for the mid year school holiday. The mother contends that she left [E] because of the unnecessarily intrusive behaviour of her parents in the care of the children concerned. In addition, she says Mr H deceived her about the nature of the criminal charges which he was facing.
The mother and Mr H were first involved with one another in the period prior to [X]’s birth. Thereafter they did not see one another for many years. The mother acknowledges that Mr H’s violent behaviour necessitated both her and her parents taking out Domestic Violence Restraining Orders against Mr H in the past. These orders were still in place when she resumed her relationship with Mr H in the middle of 2007.
In the report of 6 November 2007, an officer from Families SA wrote as follows:
“The Supervisor, who has the delegated responsibility for case management decisions under the Children’s Protection Act, advised that she understands that Mr H is currently incarcerated and the children’s grandparents are seeking residency of the children. She stated that while Families SA will not intervene in these proceedings, she would be extremely concerned if the children were to have any contact with Mr H.
While Ms Cowles appears to have been unaware of Mr H’s sexual offence against a minor, she was aware of his history of violence and still attempted to rescind the restraining order while the children were in her care. This, and credible information regarding the children’s presentation while in her care, raises concerns about Ms Cowles’ care of the children. Families SA records hold no information of concern regarding the grandparents.”[5]
[5] Page 4 of exhibit 3
The mother’s behaviour throughout the first half of 2007 and the reluctance of Families SA to take a more proactive role seems to have been the main precipitating factors in the grandparents commencing proceedings in this Court, which they did on 25 July 2007. It is their position that they had become increasingly concerned about the mother’s parenting of [X], [Y] and [Z] and felt that they could no longer in good conscience support her. From the mother’s perspective, this is evidence of the grandparents’ over weaning interest in her affairs and their inability to allow her to get on with her life, as she sees fit, without their self interested interference.
The events of mid 2007 and the grandparents’ response to them have forced a wedge between Ms Cowles and her parents. Accordingly, from Mr and Mrs Cowles Senior’s perspective, the mother will no longer be amendable to receiving assistance from them to care for the children. For the mother’s part, she has made it quite clear that she is not interested in receiving such assistance, which she believes is likely to be insincerely offered.
In such circumstances, Mr and Mrs Cowles Senior assert it is obvious that the wellbeing of the children concerned is likely to be undermined in future by other poor lifestyle choices the mother is likely to make. They also say that it is apparent that the mother needs intensive support to parent the children, particularly to ensure they get to school regularly, are properly housed, bathed and nurtured. Accordingly, from their point of view, it is now opportune for the Court to act and place the children in their predominant care.
The mother vehemently opposes such an outcome. She acknowledges that she has made poor choices in the past, particularly in so far as

Mr H is concerned. However, it is her case that she is now receiving the assistance, which she requires, from non government agencies and it would be highly detrimental to the children’s wellbeing if they are removed from her care at this juncture, particularly as she must be regarded as each of the children’s primary carer.
The mother is supported in her case by her current partner, Mr S. He is undoubtedly the father of the mother’s soon to be born child and asserts, with the mother, that he is [D]’s father. Both Ms Cowles and Mr S assert that, if the Court gives effect to the grandparents’ proposal, it will mean that the mother’s family will be potentially irretrievably divided.
Given the complex nature of these proceedings and the fact that parties other than the children’s parents seek to be custodians of the children concerned[6], it has been ordered that [X], [Y] and [Z]’s interest should be represented independently of the parties. The children’s independent lawyer[7] is Mr Adey. He has briefed a barrister, Mr McQuade to appear on [X], [Y] and [Z]’s behalf.
[6] see Re K (1994) FLC 92-461
[7] see Family Law Act at s.68L
The law requires Mr Adey and Mr McQuade to formulate a position, based on the evidence available to them, which they think will be in the children’s best interest.[8] In his submissions, Mr McQuade advocates that the children concerned should move to live predominantly with their grandparents, notwithstanding the period of time during which they have previously lived with their mother.
[8] see Family Law Act at s.68LA
In reaching this position, Mr McQuade has been influenced by his impressions of the mother in cross-examination and his inspection of a number of records, which have been subpoenaed, particularly education and medical records.
Mr McQuade views Ms Cowles as a dishonest and manipulative person, who has lied to the court, particularly in regards to the paternity of [D]. In addition, school records reveal [X] and [Y] to have been persistently truant from school throughout much of 2007 and 2008.

Mr McQuade asserts that there are considerable questions necessarily arising regarding the mother’s capacity to protect the children from being exposed to neglect in particular.
Mr McQuade characterises each of the children as being vulnerable. [X] has learning difficulties. [Y] has been diagnosed as suffering behavioural problems. As such, the children need a structured and disciplined home life which Mr McQuade contends the mother is ill equipped to provide. In Mr McQuade’s contention, these considerations favour a change of residence for the children, as does the fact that such a change will enable the two older children to expand their relationship with their father.

In his role, as the independent children’s lawyer, Mr Adey has arranged for a family assessment report to be prepared. As previously indicated, this report was prepared by Mr Anthony McDonagh, an experienced social worker and family consultant. Mr Adey arranged for Mr McDonagh to have access to many of the subpoenaed records, particularly regarding the involvement of Families SA with the family.
Mr McDonagh was able to visit the children at their mother’s home, their grandparents’ home and Mr Madden’s home. As such, he was able to canvas the views of [X] and [Y] in a variety of settings.
Mr McDonagh also advocates a change in arrangements for the children’s care. He has reached this opinion because he believes it is what [X] and [Y] want and because it will be in each of the children’s best interests. Mr McDonagh did not form a favourable impression of the mother or her household. He described her as “a marginal parent” who was adept at manipulating authorities and deflecting attention from herself and her parenting.
In particular, Mr McDonagh provided the following assessment:
“It would appear that the mother has led an unstable life over an extended period of time. Her lifestyle has included multiple partners, changes of house and changes of school for the children. Her parents have provided her with support over many years. They have acted as a safety net for her and the children. They are no longer able to support their daughter as they see her continually living the same way and exposing the children to the same high risk, dysfunctional lifestyle.”[9]
[9] See family assessment report at page 16
From his assessment of her, Mr McDonagh professed himself “… not confident that the mother has changed her lifestyle and is capable of providing the children with a settled and stable lifestyle. The patterns of the last few years are once again in place. The mother’s history suggests that once the scrutiny is removed from her she will return to her former life.”[10]
[10] Ibid at page 18
As such Mr McDonagh supported the children being placed in the care of their grandparents, whom he assessed as having a more settled lifestyle than the mother. Of particular concern to Mr McDonagh was his apprehension that the mother would attempt to sabotage any such outcome because of her antipathy for her parents and inability to focus on the children’s long term best interests. He was particularly concerned that the mother had already tried to influence at least [Y] against his grandparents.
As a result of these concerns, Mr McDonagh recommended that the children should be given a period of six months to settle in to their grandparents care, during which time they should not see their mother. Thereafter he recommended that the children should recommend their mother for one weekend each month.
For obvious reasons, Mr Eid, counsel for the grandparents is content to adopt the submissions of Mr McQuade and accept the recommendations of Mr McDonagh.
On the other hand, it is Mr Bowler’s view that Mr McDonagh’s report is perfunctory and its conclusions flawed. In particular, he contends that any view which Mr McDonagh has reached that any of the children are at risk of neglect when in their mother’s care is largely conjectural and lacking in objective and supportive evidence.
The main basis of the grandparents case rests on the provisions of section 60CC(2)(b) of the Family Law Act which directs the court, in considering a child’s best interests, to have regard to: “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse or neglect or family violence.”
Mr Bowler contends that there is not sufficient evidence of any of the children suffering from such physical or psychological harm, as a result of the mother’s conduct, to justify the extreme step of removing them from the mother’s care. Particularly, when none of the notifications made to the department have resulted in any confirmation of either abuse or neglect and the orders sought by both the grandparents and the independent children’s lawyer would result in the children concerned having their maternal relationship severed in the short term and severely curtailed in the long run.
These proceedings are directed to resolving this complex and multifaceted dispute between the parties. Whatever is the outcome, it will involve heartache to one or other and possibly all of the actors involved.

The legal principles applicable

Part VII is the part of the Family Law Act which deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount or most important consideration [Family Law Act section 60CA].
The Family Law Act is primarily a code for regulating arrangements regarding the care of children between the parents of any child concerned. However, a parenting order need not be confined to an order made in regards to a child’s parents alone.
It is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].
As the expression implies, obviously parenting orders are most usually made in favour of the parents of the child concerned but clearly can also include other people, who are significant to the child concerned, in the sense of that child’s care, welfare and development.
Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. Accordingly, the applicants have legislative authority to seek the orders, which they do.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Underpinning the applicant grandparents case are primarily two of the objects contained in section 60B(1). In lay terms, an object can be defined as an aim or goal. It is something to be sought or an end to be aspired to. The objects are relevant to all courts, which apply Part VII of the Family Law Act.
Mr and Mrs Cowles Senior essentially argue that if [X], [Y] and [Z] are to receive adequate and proper parenting and so achieve their full potential as adults, it is necessary for there to be a fundamental change in both their living and care arrangements.
Associated with this proposal is their position that it is incumbent upon the court to act now to ensure that none of the children sustain physical or psychological harm, as a result of the neglect or abuse entailed in the mother’s parenting style. It is Mr and Mrs Cowles’ case that their daughter has failed to fulfil the duties and meet the responsibilities incumbent on being a parent.
The mother approaches the case adopting others of the objects and principles contained in section 60B, which emphasise the primacy of parents in providing care and nurture for their children. Clearly, the child/parent relationship is one of the fundamental cornerstones of human organisation, which the applicable law recognises.
A principle is defined as “a fundamental truth or law as the basis of reasoning or action”.[11] The principles of the Family Law Act emphasise the “right” of a child to know and be cared for by both of his or her parents.
[11] See the Australian Oxford Dictionary
Essentially, the mother argues that the orders sought by the applicants will fundamentally interfere with the right [X], [Y] and [Z] have to know and be cared for by her. Particularly as this is the situation which they have each always known.
It is also her case that the children have a right to know and spend time with [D] and their soon to be born half-sibling, again which right will be either negated entirely or significantly diluted, if the court accedes to the applicants’ proposals.
I have taken some time to set out the different aims and principles of the Act and the parties’ difference reliance on them to emphasise the difficulties inherent in this case. However, none of these aims or principles is ranked in any order of priority. They each remain important, depending on the particular circumstances of the case concerned.
The fundamental task for the court is to determine, bearing in mind these goals and principles, what is the best outcome for any child concerned, both now and in the future. Necessarily different but equally important concepts must be weighed and accessed against each other to achieve the best outcome for any child concerned.
The objects and principles of the Act also emphasise the importance of both a child’s parents being closely involve in their child’s life, particularly in terms of the discharge of duties and responsibilities arising from the care, welfare and development of their children. In this case, neither Mr Madden nor Mr B have sought to assume an active role in these proceedings. This circumstance raises other legislative considerations.
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
Given the lack of formal involvement of both Mr Madden and Mr B, none of the parties in this case seeks that the presumption of equal shared parental responsibility should be applied to [X], [Y] and [Z]. Rather, the parties propose that the question of parental responsibility should be determined pursuant to section 64B. There is no impediment to a parenting order being made in favour of the applicant grandparents [section 64C].
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In assessing the various considerations arising under section 60CC(2) & (3), the court is required to consider the extent to which each of the parents of the child concerned has fulfilled or failed to fulfil the responsibilities of being a parent.
This assessment includes how much time and communication each parent has had with the children; their degree of involvement in long-term decision making; and the fulfilment of financial obligations towards the children concerned.
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives, again, these considerations emphasise the benefits for children of affective co-parenting and the obligations on parents to facilitate it.
Again, these considerations are somewhat academic, so far as

Mr Madden and Mr B are concerned. However, it seems to be a significant element of both the applicant grandparents’ case and that of the independent children’s lawyer that the mother significantly failed to fulfil her responsibilities, as a parent for [X], [Y] and [Z], in a generic sense.
The court is required to put into place the outcome which it considers will best serve the interests of [X], [Z] and [Y], according to the best criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[12]
[12] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]

The documents relied upon

Neither the applicant grandparents nor the mother herself expressed the orders which they wished the court to make with any particular specificity. I suspect that this is because none of them is particularly sophisticated, in a legal sense.
In their application filed on 25 July 2007, the applicant’s seeks the following orders:
1. That the mother deliver up the children [X] born in 1998 and [Y] born in 2000 to the applicant grandparents.
2. That thereafter the said children shall live with the grandparents until further order and the grandparents will have the sole parental responsibility for the decision making about their daily care.
3. That until further order the mother and the father do spend time with the said children by on such occasions as may be agreed between the parties and failing agreement as determined by this Honourable Court.
4. That until further order the mother and father be restrained and an injunction be granted restraining them or either of them from removing the said children from the care of the grandparents except in accordance with an order of this Honourable Court.
5. Such further or other order as this Honourable Court deems fit.[13]
[13] In his outline of submissions, counsel for the applicant Mr Eid indicated that this remained his client’s position at final hearing
In her response filed 4 October 2007, the mother simply seeks the dismissal of the grandparents’ application and proposes no orders in respect of the children spending time with their grandparents or any allocation of parental responsibility between her and them.[14]
[14] This remains the mother’s position as outlined in the outline of case filed by her counsel, Mr Bowler.
The grandparents relied on the following documents:
i)Two affidavits of Mr Cowles filed on 25 July 2007 and 23 February 2008;
ii)Two affidavits of Mrs B Cowles filed on 25 July 2007 and 23 May 2008 respectively.
The mother relied on the following documents:
i)An affidavit of herself filed 2 June 2008;
ii)An affidavit of Mr S filed 6 June 2008.
The independent children’s lawyer relied on an affidavit of himself filed 14 May 2008, to which was attached the report of Mr McDonagh dated 13 May 2008. For obvious reasons, the grandparents also rely on this report.
This case was characterised by the issue of a large number of subpoenae. As a result, a number of documents were tendered into evidence.
These documents comprised the following:
·Documents obtained from Families SA.
·The letter produced by the Department for Families and Communities in respect to the section 69ZW order made on 17 October 2007.
·School attendance records of [X] and [Y] at [G] Primary School.
·Student records in respect of both [X] and [Y].
·CAMHS records in respect of [X].
·Mother’s medical records from [omitted] Hospital regarding the birth of [D].
The applicant grandparents, the mother and Mr S each attended at court and were cross-examined. As a result, I had the opportunity to observe each of them and form my own impressions as to their veracity, personality and character.
In addition, the family report writer, Mr McDonagh was required to attend at court for cross-examination, in respect of his report, which was tendered into evidence. Mr McDonagh had a significant advantage over me, in this case. He was able to see the children interacting with each of the parties and with Mr Madden and was able to hear each of them speaking with their own voices.
Accordingly, Mr McDonagh’s opinion and evidence must be given a high level of regard by the court. Mr McDonagh has been in private practice, as a social worker practising in the area of family relationships for many years. A significant component of his practice concerns the preparation of family assessment reports for this court and the Family Court.
The various documents referred to above and the oral evidence of each of the witnesses concerned, comprises the evidence on which the decision in this case will be made. In these reasons for judgment, findings of fact are made on the balance of probabilities, based on my observations of the parties, the witnesses concerned and the consideration of the overall evidence. In what follows, statements of fact constitute findings of fact.

The evidence

The issues in this case are complicated. They have arisen over several years and have created powerful emotions, on the part of each of the parties concerned. In addition, they involve a high level of conflict between close blood relatives.
It is, I think, becoming increasingly recognised that it is difficult for courts to make findings of fact about myriad issues, which have arisen over many years, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and often professional affidavits.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective case, the failings of the other party concerned and minimise their own.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and the witnesses involved, so that this adjudication can occur.
Mr and Mrs Cowles Senior seem to me to be simple and unassuming folk, who were both scrupulously honest. They did not seem to me to be motivated by any secret vendetta against their daughter or to be hyper-critical or overly judgmental about her lifestyle.

In this regard, they did not seem to be unnaturally fastidious about such things as cleanliness, the behaviour of children or parenting practices generally. Certainly, I do not regard them as interfering or over weaning grandparents, who for personal emotional reasons relating to a desire to control, are unable to relinquish authority over one of their adult children and let that child exercise proper authority over his or her children.
To the contrary, it is my impression that Mr and Mrs Cowles would prefer their daughter to care for [X], [Y] and [Z], provided she was able to do so with the barest possible degree of competency. In this regard, I do not regard them as being maliciously motivated towards Ms Cowles.
Rather, over many years of experience of Ms Cowles close hand, they have reached the conclusion that their daughter lacks the necessary degree of insight and responsibility to parent the children properly and is unlikely to change. This must have been a harsh and tragic realisation for each of them.
Mr and Mrs Cowles are likeable, down to earth people, who are not particularly sophisticated. They are involved in this case because they think it is the right thing for them to do and because they are concerned no-one else other than they is likely to be motivated to look out for the best interests of [X], [Y] and [Z], whom they both love and care about.
Neither applicant but particularly Mrs Cowles, relish conflict, particularly with their daughter Ms Cowles. They have become involved in these proceedings reluctantly and because they believe there is no morally justifiable alternative for them. Accordingly, I accept that they are each well motivated to institute the proceedings and do so only because they think it is for the best for the children and if they do not do so the consequences for [X], [Y] and [Z] are likely to be dire.
Accordingly, I do not challenge the bona fides of either applicant or question their credibility, particularly in terms of their respective assessment of Ms Cowles’ parenting capacity in the past. In particular, I do not believe that they are likely to exaggerate these concerns or to be liable to set an unrealistically high standard of parenting for

Ms Cowles, given the obvious difficulties which she currently faces and has faced in her life, up to this time.
Ms Cowles was a witness under intense pressure. She was unable to muster any significant supporters or defenders of her parenting. In the past, her parents performed this role. Now, to my mind, it is telling that they are her staunchest and most public critics. I do not think that they have changed their view of the mother for any reasons of personal animus against the mother. Rather, this change of heart has occurred because of their direct experience of her parenting.
The mother was not an impressive witness under pressure. She responded with a mixture of truculence and resignation to questions put to her about her past behaviour and, at times, I thought, with direct avoidance or dishonesty.
I agree with Mr McDonagh’s assessment that she is not a particularly sophisticated individual. Certainly not in respect of the potential impact of her behaviour on any of the children concerned. Above all, I have grave concerns that she will not be able to modify her parenting, as a result of these proceedings. Rather, I am concerned that she sees them as an ordeal, which she must bluster her way through.
The mother is used to dealing with authority, at a fairly low level. Sadly, she is likely to both need and fear such authority figures. As such, she has become adept at both manipulating them, from time to time, and deflecting their scrutiny, when she fears it. My impression is that she is not particularly amenable to receiving advice or guidance from such persons, certainly not when it does not coincide with her wishes.
The mother has been steadfast in her position in these proceedings that Mr S is the father of [D] rather than Mr H. In my view, the period when Mr H and Ms Cowles were in a relationship with one another and the date of [D]’s birth, strongly indicate that Mr H is most likely to be [D]’s father.
Mr S was not an impressive witness in this regard. Initially, he indicated that he thought he became involved with the mother in September of 2007. When he was informed that this date most likely ruled him out as [D]’s father, he corrected himself and brought the time of his relationship with the mother forward to the week of his birthday.
The impression I have of Mr S was that he was the mother’s “cat’s paw” but not a particularly adept or well trained one. I am concerned that, for reasons which are unclear to me, the mother is in a state of denial about Mr H’s potential to be involved in her life. It confirms my impression that the mother’s life is one which has an ever present possibility of a descent into chaos.
In contrast to her current position regarding [D]’s paternity, there are several references in the mother’s hospital records, where she describes to medical staff that the father of her pregnant child is in prison. The mother’s explanation for these discrepancies, with her current position, relates to what she says was a mistaken view about a pregnancy test. I did not find this at all convincing. There is no suggestion, in the medical records, that [D] was not born full term.
On her discharge from the [omitted] Hospital, the mother was described as “aggressive and violent”. In her discharge record, [D]’s father is noted to be “in jail”. This was the history, which she apparently so gave in early July of 2007.
The records indicate that the mother had earlier demanded of medical staff that [D]’s birth be induced. When this request was declined, as being not medically indicated, she became aggressive and threatened to harm both herself and the unborn child. The mother also discharged herself and [D] from hospital, on the day of [D]’s birth, against medical advice. This lead to the hospital staff making a mandatory notification of suspected child abuse to Families SA.[15]
[15] See exhibit 8
I do not necessarily think that the mother’s aggressive behaviour in the hospital can be regarded as an isolated incident brought on by the stress of [D]’s birth. Rather, my impression is that, if the mother does not get her own way, she lashes out and has a tendency to act against the best interests of her children, regardless of what she has been advised.
Accordingly, it is my assessment that Mr and Mrs Cowles Senior are more likely than the mother to be reliable historians of what has occurred in the past. For obvious reasons, the mother is not likely to be capable of engaging in any realistic self-criticism of her parenting, unless the pressure of incontrovertible fact, compels her to do so. On the other hand, it is my view that the grandparents are capable of some level of objective criticism of their daughter’s parenting.
Mr McDonagh had a significant advantage, over me, in these proceedings. He was able to visit each of the parties’ homes and draw direct personal impressions of these environments and how each of them acted within them. In addition, he was able to speak directly to [X], [Y] and [Z] and hear and gauge what they had to say, with their own voices.
In all the circumstances of this case, I do not discount, in any way, the value of these first hand impressions. My impression of Mr McDonagh is that he is not a person who is governed by any unrealistic middle class sensibilities in his assessment of either the mother or the grandparents concerned. To the contrary, he seemed to me to be grounded in reality. As such, he did not measure the mother’s parenting against some unrealistically high standard.

a) Background

Mrs B Cowles was born in 1953. Mr Cowles was born in 1955. The mother was born in 1978. Mr Madden was born in 1981.
Mr and Mrs Cowles Senior live in four bedroom house in [E], which they are purchasing. Mr Cowles is in receipt of a disability pension because of a back injury he has suffered. Previously he was a truck driver. Mrs Cowles is also in receipt of social security payments. It is unlikely that either Mr and Mrs Cowles Senior will be part of the paid workforce in future.
Besides the respondent mother, Mr and Mrs Cowles Senior have two other children, a son aged thirty-one and a daughter aged twenty-four. Their youngest child lives with them in [E]. She is employed as a carer working in Adelaide.
When the children are with Mr and Mrs Cowles Senior, the two boys share a bedroom and [X] has her own room. In the past, the children have attended the [E] Primary School.
Currently, Mr and Mrs Cowles Senior acknowledge that they have absolutely no relationship at all with their daughter, Ms Cowles.

Mrs Cowles candidly concedes that she does not know how “things are going to work out”. However, it is her case that she is “putting the children’s happiness first” by bringing this application. Mrs Cowles indicated that she would be willing to attend mediation with her daughter but is doubtful that it would achieve any useful purpose.
Mr Cowles has an injured back and knee. Mrs Cowles suffers from arthritis. She is also diabetic but her diabetes is controlled by medication. At this point, I do not believe that the current state of health of either of the applicants rules them out as possible carers for the children.
I accept that Mr and Mrs Cowles Senior have been closely involved in supporting the mother and caring for the three children concerned in the past. Accordingly, I accept that they have a significant knowledge of the mother’s parenting abilities, obtained at close hand, over many years.
The grandparents complaints about the mother’s parenting can be summarised as follows:
·She moves frequently, very often as a result of eviction.
·She has many partners.
·She does not maintain a clean and tidy home.
·The children are left to fend for themselves. As a result, they are not properly fed or bathed.
·The mother is emotionally voluble. She loses her temper easily with the children and strikes them.
·She does not ensure that the older children attend school properly or regularly. Her lifestyle subjects them to frequent changes of schooling.
The mother denies the gravamen of these allegations. It is her case that she “works hard at caring for her children and does her best to ensure that her house is clean and tidy.”[16]
[16] See mother’s affidavit of evidence filed 2 June 2008 at paragraph 44
The truth or otherwise of the grandparents’ allegations against the mother, particularly in respect of the state of her household and her caring for the children, must depend upon my assessment of the relative veracity of each of the parties concerned. For the reasons already provided, I think the grandparents are likely to be more reliable assessors of the mother’s household than the mother herself.
In particular, I accept Mrs Cowles’ evidence that she frequently felt driven to clean the mother’s household, when she visited. I also accept that during the period the mother lived in [E], which was the early part of 2007, Mrs Cowles was a frequent visitor to her house and often did the mother’s washing and helped her with her shopping.
Mrs Cowles complains that she frequently found mouldy plates and was concerned about the general sanitation of the mother’s household. Of themselves these may not seem particularly serious problems but I accept Mrs Cowles’ evidence that they are indicative of the fact that the mother has struggled with the responsibilities of being a parent, particularly providing regular supplies of food and clothing for the children.
Issues of parental neglect are often difficult to independently verify because such neglect often occurs within the family unit concerned, behind closed doors and away from general scrutiny. Often other family members are too embarrassed or fearful of the damage which may be caused to relationships to report such neglect to any independent authority.
In a case such as this one, I am well aware of the pitfalls of either too readily accepting the grandparents’ allegations or too readily dismissing them because of the absence of strong verification. For these reasons, it behoves me to pay particular attention to all relevant documentary evidence.
In this regard, the records of Families SA indicate the following:
“On 26 September 2006, Families SA were notified of concerns that Ms Cowles was neglecting [X]. The notifier said that the family’s car was very dirty and smelly, and that [X]’s feet were very dirty, smelly and appeared as though they had not been washed for weeks. The notifier said that [X] had food spills on her clothes and that students at her school refused to sit next to her, saying that she smelt like vomit. The notifier said that previously [X] had peanut butter in her hair for four days and she appeared embarrassed about her appearance.
Families SA contacted [X]’s school to obtain information about [X]’s presentation at school and their contact with Ms Cowles. The notes indicate that the person at the school stated that Ms Cowles avoided responsibility for parenting issues such as hygiene and often blamed teachers for [X]’s problems. The person at the school said that the school was trying to sort out some issues with Ms Cowles on terms of “education delivery”. When Families SA recontacted the school to check on [X]’s progress, the worker was advised that the school had started a general program about hygiene, encouraging the children to wash their faces and hands rather than singling out individual children. As this matter had been addressed, Families SA did not intervene any further.” [17]
[17] See exhibit 3
There is also clear and unequivocal evidence that [X] and [Y]’s attendance at school has been irregular and they have frequently changed their place of school. [X], in particular, has had enrolment at eleven schools and [Y] at six.[18]
[18] See exhibit 6
As a result of orders made by Federal Magistrate Kelly, on 27 September 2007, the children concerned are to live with their mother, who is to ensure that [X] and [Y]’s enrolment at the [G] Primary School continues.
[X] and [Y]’s attendance records, for 2008, at the [G] Primary School have been subpoenaed. These records show that between 30 January and 18 June 2008 [X] has been absent from school on thirty-six occasions and [Y] on thirty-eight occasions. Records for earlier years show a similar record of irregular school attendances.
Given the nature of these proceedings, I would expect the mother to be more rather than less punctilious about the children’s attendance at school. Her explanation for the children’s poor attendance record is that they have been either ill or required to attend various family appointments with her. Like Mr McQuade, I did not find these explanations either acceptable or likely to be truthful.
Given the children’s frequent changes of school, there appears to be independent verification that the mother has frequently changed her address. I accept that she belongs to the most financially disadvantaged segment of the Australian community. However, these frequent changes of household do appear to me to be indicative of some level of financial ineptitude, on the mother’s part, as do her numerous requests to Families SA for emergency financial assistance. In reaching these conclusions, I do not believe that I am judging the mother against either an inappropriate or unrealistic yard stick.
The records show that [X] and [Y] were enrolled at [S] Primary School in [V] for one day on 1 May 2007. The mother explains that at this time she was having difficulty with her accommodation and had moved to a relatives’ home in [V]. However, she had an argument with this relative and moved. This was the reason for the children’s brief period of enrolment at this particular school. Again, to my mind, this incident is indicative of an extreme level of instability in the mother’s life.
It is Mr and Mrs Cowles Senior’s position that, from time to time, the mother has returned to live in the [E] area to obtain support from them. At these times, [X] and [Y] have been enrolled at the [E] Primary School. As a result, Mrs P, the principal of the school has had an opportunity to observe the children and indeed the applicants.
Mrs P is highly supportive of Mr and Mrs Cowles Senior, whom she describes as “caring and unselfish”. She also writes that they have provided accommodation and clothing for the children and organised rental accommodation for the mother in the [E] area. In her opinion, [X] and [Y] need some stability in their schooling in order to gain basic learning skills.
I appreciate that I have not had the opportunity to see Mrs P give her evidence directly, particularly under cross-examination. I also appreciate that it may be the case that she is aligned with the grandparents and has no specific knowledge of the mother herself.
However, notwithstanding these criticisms, it is my view that it is incumbent upon the court to give significant consideration to her opinion, particularly when the incontrovertible documentary evidence indicates that both [X] and [Y] have an interrupted record of attending at school and [X], in particular, has begun to display learning difficulties. Mrs P writes as follows in July of 2007:
“I am writing this letter on behalf of two students, [X] and [Y], who are presently re-enrolled at [E] Primary School. These two students have ‘flitted’ in and out of our school over the last two and half years. [X] was seven when we first enrolled her. Her schooling record is nightmarish…3 months first school, 9mths, 2mths, 10days, 4 months, 9 months, 1 month, 1 month, 1 month. No wonder she is operating at a reception level in all subject areas and is very unsettled. She is now a week off her ninth birthday and has passed through ten schools. We are a rerun as the eleventh school. [X]’s education has already suffered dramatically because of the sudden ‘up and away’ behaviour of their mother. [Y] is turning seven and loves to learn. He is a very serious little lad who is finding it hard to make friends with his peers because he has not been settled anywhere long enough. If some stable schooling is not put in place soon, I fear he will also develop learning difficulties. He takes everything to heart and is very protective of his mother. It is heart breaking to hear him speak about his house cleaning responsibilities and the fact they are always moved on by the landlords.”[19]
[19] See Annexure A to Mr Cowles’ affidavit filed 23 May 2008
Given the mother’s behaviour at the [omitted] Hospital, described above, and my own impressions of the mother in the witness box, I find it difficult to disbelieve Mr and Mrs Cowles Senior’s accounts of their daughter finding it easy to lose her temper with the children. Certainly, it would seem to be the case that there have frequently been very many stressors in the mother’s life. She acknowledges as much in her affidavit material. She acknowledges being “emotional at times”. She also says that she has experienced difficulties in the past maintaining permanent accommodation for herself and this has been as a result of “poor choices in relationships”.[20]
[20] See mother’s affidavit of evidence filed 2 June 2008 at paragraphs 47 and 66
These are admirable indications of candour on her part but I am not convinced that she has been equally candid about other problems she has faced in the past. Given the obvious evidence of accommodation and school changes for the children, she is not in a position to deny these matters.
The mother has also provided two references in support of her parenting. The first is from Ms M who is the support officer with the mental health support group of [G]. She describes the mother as a firm but fair mum. Ms M also acknowledges that Ms Cowles has had “a great struggle over the last few years”, presumably with her parenting. In the circumstances of this case, I find it difficult to give much credence to Ms M’s opinion.

Secondly, the mother has relied on a reference dated 29 May 2008, from Ms S, the principal of the [G] Primary School. Ms S deposes that Ms Cowles “makes the long journey to school each day unless the children are sick or they have medical or family appointments.” I find this statement extraordinary, given the level of the children’s absences from school in the first part of 2008. I can only assume that Ms S has no great knowledge of Ms Cowles and her circumstances. I find

Mrs P’s report far more compelling and, on balance, likely to be insightful.
Having considered each of the complaints of poor parenting, levelled by the grandparents against the mother in this case, I believe that there exists some level of independent corroborative evidence to support each of them to varying degrees. I also think there is considerable substance to Mr McDonagh’s assessment that the mother is adept at dealing with the various sources of authority, which come into her life – Centrelink; Families SA; the Education Department – and diverting any scrutiny from these sources onto her parenting, usually by moving.

b) The events of May – July 2007

It is the grandparent’s evidence, which I accept that, over very many years, they have provided support for the mother, in the parenting of the children. This has included taking on responsibility for accommodating the children, at short notice and assisting the mother to find housing for herself. It is their position that, as a result of what happened around the middle of 2007, they no longer see any point in providing this type of assistance because, sadly, they believe their daughter is incapable of changing and accordingly someone needs to step in to ensure that the children are adequately parented.
In the early part of 2007, the mother and the two children concerned were living in housing trust accommodation in the [G] area. The mother left this accommodation in March of 2007 and moved to [P]. As a result, the children were enrolled at [P] Primary School for about three weeks.
The mother acknowledges that her accommodation at [P] was not particularly stable. It was around this period that she moved in with a relative and the children’s schooling was changed to [S] Primary School for the very brief period, as outlined above.
It was against this background that Mr and Mrs Cowles Senior stepped in and arranged private rental accommodation for the mother and children in [E], near to where they lived. During the period which followed, I accept that Mr and Mrs Cowles Senior regularly visited their daughter and provided her with extensive support in keeping house. The mother, for her part, appears to have become increasingly annoyed at what she perceived to be her parents ever increasing involvement in her life and their criticism of it.
No doubt, from Mr and Mrs Cowles Senior’s point of view, they could see great advantages, for the children, in them living close to their grandparents, particularly that they would be able to monitor their care and ensure [X] and [Y] attended school regularly. However, the arrangement was abruptly terminated by the mother on 28 May 2007. Since this date, Mr and Mrs Cowles Senior have lost all confidence in their daughter’s parenting ability and a rift has opened up between them.
On 28 May 2007, the mother collected [X] and [Y] from their school at [E]. She then moved with all three of the children to live in [B] with Mr H. She did not inform her parents of this proposed move. No doubt, she was aware that they would be disapproving of it.
Rather, after she had left [E] with the children, she sent a text message to her parents asking them to remove her furniture from the premises, which she had rented in [E] and store them on her behalf. Mr and Mrs Cowles Senior attended to the finalisation of the mother’s lease. It is their evidence that the mother left the premises in a state of considerable disorder. I accept that this is so.
The mother had first met Mr H, when she was a teenager and had been involved in a relationship with him, prior to the birth of [X]. Mr H apparently has a history of schizophrenia. In the past, he has behaved in a violent manner to both the mother and her parents. Mrs Cowles Senior and the mother have each obtained restraining orders against

Mr H, which remained in effect in May of 2007.
Needless to say, Mr and Mrs Cowles Senior thought it was an extremely poor decision, on the mother’s part, to uproot the children, particularly [X] and [Y], from [E] and move them to [B] with a person whom they regarded as potentially dangerous and anti-social. In all the circumstances of this case, I agree with Mr and Mrs Cowles Senior’s assessment. The mother showed scant regard for the wellbeing of the children. I am also concerned that one of the motivating factors for the move was to escape her parents’ scrutiny.
The mother’s evidence is that Mr H contacted her, out of the blue, after not having seen her for about eleven years. She was favourably impressed with how he presented himself to her and she thought that he was a changed person. She also acknowledges that Mr H “filled [her] head with lies” about himself.
It is the mother’s case that she understood that Mr H was under some form of home detention, at the time she resumed her relationship with him. However, she asserts that Mr H told her that he was on “HD for driving offences”. As a consequence, at the time, Mr H was wearing a surveillance bracelet on his wrist.
In all these circumstances, Ms Cowles was content to move herself and the children to [B], so she could live with Mr H, at his sister’s home there. Apparently, Mr H was to undergo home detention at this location.
Ms Cowles acknowledges that she was not happy, living close to her parents, because “they had decided to control me”. In these circumstances, she was pleased to resume her relationship with Mr H, particularly if it meant she could get away from [E]. In my estimation, the decision was motivated by her own needs not those of the children. It was a hasty and ill-considered decision.
The mother indicates that she thought “maybe probably” Mr H had changed since her last involvement with him. She says that she discovered that he was not a changed person, but remained unstable, about a month after she had resumed living with him. She was present when he cut off his surveillance bracelet.
The Families SA report deal with this incident as follows:
“Most recently, on 26 June 2007, Families SA were notified that Ms Cowles’s partner, Mr H had cut off his home detention bracelet and absconded with Ms Cowles and the children. The notifier reported that Mr H had been on bail for allegations of unlawful sexual intercourse with a child under the age of 12. The notifier also reported that Mr H had other matters pending, including threatening to kill and endangering life. The report identified that Ms Cowles attempted to rescind her DV restraining order against Mr H. The intake identified that Mr H had a violent history, had tested positive for THC (marijuana) and had a history of amphetamine use.”[21]
[21] See exhibit 3
The mother acknowledges that she became aware that Mr H had deceived her about why he was subject to correctional supervision.

Mr H apparently was apprehended by police in late June of 2007. This was prior to the mother commencing her relationship with Mr S. It is about thirty five weeks between the end of June and 26 February, the date of [D]’s birth. It is just over thirty-nine weeks from 28 May to 26 February.
At the time of Mr H’s apprehension, the children concerned were in the care of their grandparents. Ms Cowles had left the children with them, during the mid-year school holidays, whilst she pursued her relationship with Mr H. Initially Mr and Mrs Cowles Senior were advised by Families SA not to return the children to the mother’s care. Indeed an officer of the Department, Mr Differ was anxious that the children be medically examined, as a result of their exposure to Mr H.
For reasons which are not particularly clear to me, the Department changed its advice and recommended that Mr and Mrs Cowles Senior return the children to the mother’s care. Against their better judgment, Mr and Mrs Cowles Senior followed this recommendation. However, as previously indicated, a short time later, they commenced these proceedings.

c) Events since

It seems to be the case that the mother and Mr H were evicted from their accommodation in [B]. As a result of her actions in leaving [E], the mother no longer had any accommodation there. Following the return of the children to her care, she was compelled to stay with a friend in the [G] area. The accommodation concerned was a small flat and the mother and the children concerned were compelled to share a bedroom.
On 27 September 2007, Federal Magistrate Kelly made orders that the children spend time, with their grandparents, during the third term school holiday of 2007 and on alternate weekends, during the school term. The children were to be exchanged between the parties at the [G] Police Station. It was also ordered that [X] and [Y] continue to attend [G] Primary School.
These orders did not make specific reference to earlier orders, which mandated parenting arrangements in respect of [X] and [Y], between the mother and Mr Madden, which required these children to spend regular weekends with their father. It is the grandparents’ position that the mother was intent on utilising this omission for her own ends by playing them off against Mr Madden.
This situation has now resolved. The grandparents and Mr Madden are now aligned with one another. As such, Mr and Mrs Cowles Senior have no objection to Mr Madden seeing the children, on the weekends, when they are in their care.
The mother is not well disposed to Mr Madden. In the past, she has alleged that Mr Madden has exposed the children to pornographic videos and is otherwise is an inappropriate custodian for them.
As previously indicated, Mr Madden has elected not to take part formally in these proceedings, although he attended court on each day of them. It is a significant element of the grandparents case that they are much better placed to ensure that [X] and [Y] maintain a relationship with their father.
In my view, there is evidence to suggest that the mother is more than capable of manipulating the children if she thinks such behaviour is likely to be in her interests. It is clear that she holds an extremely poor view of Mr Madden. In such circumstances, I hold grave concerns that Ms Cowles is capable of supporting the children maintaining their relationship with Mr Madden.
The mother has now obtained accommodation for herself and the children in [L]. It is her case that her circumstances have vastly improved. She has assistance from a social worker at Anglicare and attends a mental health support group in [G]. She also receives assistance from a family counsellor, about once a fortnight.
The mother describes herself as having been depressed in the past, although this has never been formally diagnosed. To use the mother’s own words she “goes down and out and doesn’t feel like [she] is worth anything.”
Certainly, there seems no doubt that the mother’s circumstances are more secure than when she was living with her friend in the [G] area. This was a situation which was in place for some months, including when Mr McDonagh completed the family assessment report. Undoubtedly, the mother is receiving considerable professional assistance now. However, I remain concerned that, if and when the pressure is removed from her, the mother may act impulsively again or reject the assistance proffered to her if she feels it is unnecessarily restrictive of her.
In this regard, I note with some concern the fact that [X] and [Y]’s school attendance record has been poor for the first six months of this year, during the latter portion of which period, the mother has been receiving this more extensive level of support. Considerations of this type, when coupled with my own impressions of the mother and the assessment provided by Mr McDonagh, do not convince me that the mother has put her life in order.
[X] is clearly a vulnerable child. Mr Cowles describes her as being underweight and not thriving. The mother deposes that [X] has learning difficulties. It was also Ms Cowles’s assessment that [X] was a child who “lies all the time”.
Of more importance, it was the mother’s evidence that in 2005 she was unable to persuade [X] to wash or shower herself and more recently, in the early part of 2008, she had problems getting [X] to eat.
In April of 2008, [X] was admitted to the [omitted] Hospital, as a result of weight loss, which was “possibly related to self-induced vomiting”.[22] The mother also deposed that she was concerned that [X] may be teaching [Y] how to induce vomiting by showing him how to stick his fingers down his throat.
[22] See exhibit 7
As a result of this hospital admission, the mother was referred to CAMHS. During an interview with a CAMHS worker, on 8 April 2008, [X] and [Y] apparently indicated that they did not enjoy spending time with either their father or their maternal grandparents. It was also the mother’s position that the children were detrimentally effected by spending time with their grandparents and [X] refused to eat, after spending time with her father. Following this initial consultation, follow up appointments were made on 19 May 2008 and 2 June 2008. However, the mother and children failed to attend these appointments.
It is difficult to get to the bottom of why [X], in particular, has been displaying this worrying behaviour. It is difficult for me to assess whether the mother was attempting to influence the children in their presentation to the CAMHS worker concerned. However, of more importance, is the fact that the mother failed to ensure that the children attended at the follow up appointments.
Mr Bowler, counsel for the mother is very critical of Mr and

Mrs Cowles Senior for not attending [X] and [Y]’s school in the period since they began these proceedings. Mr and Mrs Cowles Senior conceded that this is so and that they had not made any personal inquiries of any teaching staff about the progress of the children at school.
I do not consider that this is a sign of disinterest on their part. Certainly, the mother is discouraging of any such interest. Mr and

Mrs Cowles Senior are neither sophisticated nor assertive people. In such circumstances, I can understand why they would be reticent about such inquiries, particularly if they feared it would provoke their daughter.
In the future, Mr and Mrs Cowles Senior see themselves as remaining in the [E] area. They describe their home as a large and comfortable one. I accept that [X] and [Y] are well known at the [E] Primary School and that the grandparents would ensure their attendance at this school, if the children come to live with them. In all the circumstances, I have no reason to think anything other than that, in a physical sense, Mr and Mrs Cowles Senior’s home would provide suitable accommodation for the children.
Similarly, I have no reason to think that the mother’s home is not physically appropriate for the children concerned. However, in terms of the ongoing reliability of her parenting, Ms Cowles is dependent on others to support her. In the past, this support has been provided by her parents. I am concerned that the mother has not provided any compelling evidence regarding the strength and ongoing sustainability of her relationship with the various social workers, who currently assist her.

d) Mr S

Mr S is twenty-one years of age. He is currently employed as a [occupation omitted]. He is currently living with his mother, although he sleeps over, at the mother’s home, three or four times a week.
Mr S was not sure initially when he first met the mother, putting it in September of 2007. However, he then indicated that the meeting occurred in the week before his birthday, which is on 5 July. In explanation of this discrepancy, he indicated that he easily got “muddled up” with dates.
The mother and Mr S originally met, via a common acquaintance, on the telephone. Mr S then invited the mother to visit him in Melbourne, where he was living at the time. Mr S, ostensibly at least, expressed no doubt in respect of his paternity of [D]. Apart from [D], Mr S has no other children. It is his position that he has a good relationship with each of the other children concerned.
Mr S described some behavioural problems with both [X] and [Y]. He described [Y] as having a bad temper and deposed that he referred to him (Mr S) at times as “prick” and “dickhead”. To use Mr S’s words at times, when [Y] has a bad temper, “he bounces off the table, climbs over the lounge like a monkey”.
Mr S also described [X] as running “amok”. He also indicated that she stole things, including taking a small amount of money from his wallet.
Mr S is about nine years younger than the mother. He did not impress me as being a particularly insightful person. Although, he indicated that his relationship with the mother was a secure and committed one, I confess to holding some reservations in regards to it.
Mr S described playing with the children. He indicated that he plays around with [Z]; kicks a footy and plays the playstation with [Y]; and listens to music with [X].
I have no criticisms of Mr S for engaging with the children in these types of activities, but the impression I have is that he relates to them more like a child or adolescent rather than as an adult responsible for their direction and potentially discipline.
It is Mr S’s evidence that he will not move in to live with the mother until the two are married. If the relationship continues, the marriage is likely to be some time off. At the present time, Mr S is providing informal financial assistance to the mother.
It is my view that Mr S does not provide the mother with extensive support, either financially or emotionally. Her situation at present, being responsible for four young children and expecting another, with the children concerned having at least three different fathers, is a daunting one. As Mr McDonagh put it, it remains to be seen whether the relationship between Mr S and the mother is strong enough to withstand these various pressures.

e) The family report and the evidence of Mr McDonagh

In his evidence, Mr McDonagh indicated his view that the central task for the court was to assess which of the parties’ households had more to offer the children concerned. It is clear that he did not form a positive impression of the mother. He described her as lacking insight; being reactive and excitable; highly distractible; and most importantly, having no understanding of her limits, which Mr McDonagh assessed as being considerable.
Overall, it was Mr McDonagh’s assessment that Ms Cowles was incapable of parenting independently and required extensive support for her parenting. He was concerned that, up to this stage, the children’s lives had been chaotic, as exhibited by problems with their schooling and constant changes of housing. He was concerned that the children lacked proper role models, particularly stable ones.
So far as Mr McDonagh was concerned, these issues were heightened by his assessment of the vulnerabilities of both [X] and [Y]. It was clear to him that [X] had significant educational problems and [Y] had both told Mr McDonagh and exhibited to him behavioural problems.
As a result, Mr McDonagh believed that both children’s care would be compromised, if they remained in what he considered to be an unstable environment with their mother. Overall, he assessed that Mr and

Mrs Cowles Senior were able to offer more stability and predictability for the children concerned.
Mr McDonagh interviewed the two older children separately and on three separate occasions in their grandparents’ home; their mother’s home; and their father’s home respectively.

It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[26]
[26] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
[X] is just over ten years of age. She cannot be regarded as a mature child. However, it seems to me to be likely that she understood the significance of what she said to Mr McDonagh, regarding her mother and, as such, she is a child who is capable of expressing a preference.
In this regard, it is telling that [X] has persistently maintained to Mr McDonagh that she wishes to live with her maternal grandparents. In expressing this opinion, she does not seem to have been influenced by any idealised view of Mr and Mrs Cowles Senior’s household. Rather, her preference is expressed as a desire to escape from her mother’s poor parenting. In this regard, I do not easily dismiss her comment “good is not living with mum …”.
[X] has first hand experience of living with both her grandparents and her mother. She expressed many serious criticisms of her mother’s parenting. In the light of my findings about the mother, these criticisms cannot be dismissed as being either irrational or unreasonable. In my view, [X]’s views must be given very significant consideration by the court.
[Y] is younger again. He is not yet eight years of age. The evidence also shows that his views can be subject to manipulation. As such, great caution needs to be taken in respect of the court making any definitive finding about what are or are not [Y]’s views about his future living arrangements.
It seems to me that, from what he told Mr McDonagh, [Y] is ambivalent about where he wishes to live in future. Initially, his preference was to live with both his grandparents and his mother. A short time later, when he was interviewed at Mr Madden’s home, his preference was to live with his father.
When interviewed at his mother’s home, he was ill disposed towards Mr and Mrs Cowles Senior believing that they were only motivated in seeking to have him live with them by financial considerations. This suggestion can only have been placed in [Y]’s mind by Ms Cowles. It does her no credit.
[Z], at under four years of age, was not interviewed by Mr McDonagh regarding his views. Accordingly, neither his opinion nor [Z]’s are determinative in this matter. In my view, for the reasons already provided, the same cannot be said in respect of [X].

b) The nature of the children’s relationships

For the reasons already provided, I accept that [X], [Z] and [Y] have a significant relationship with their mother, who has been their main provider of care since the date of each of their respective births. The children love their mother and she loves them. However, the relationship between [X] and her mother seems to be a complex one, manifested by [X]’s apparently negative views of her mother.
Mr and Mrs Cowles Senior have played a significant role in the children’s lives up to this point. In the past, the mother has been content to leave the children in the care of their maternal grandparents. As a result, the children have confidence in their grandparents care and appear to love both of them, a love which is clearly reciprocated.
I find that there is no basis to the mother’s assertion that Mr and

Mrs Cowles Senior are motivated in these proceedings by some hope of financial enrichment. Rather, they have commenced these proceedings because they believe that the children coming into their care represents the best outcome for [X], [Y] and [Z].
[X] and [Y] know Mr Madden as their father. I accept that Mr Madden has endeavoured to spend as much time as he possibly can with each of the children concerned. In my view, it is likely to be in [X] and [Y]’s best interests for their relationship with their father to be supported as much as possible.
It is a significant plank of the mother’s case that each of the children has the potential to have a close and loving relationship with [D] and, in the future, with their as yet unborn half-sibling. It is her case that, if the court adopts the grandparents position, it must inevitably result in the children’s family being irremediably fractured, an outcome which cannot be said to be in their best interests.
I accept that the relationship between siblings is one of the most important of all human relationships. After all, relations between brothers and sisters have the potential to continue after the death of a parent. As such, it is a significant thing for the court to consider separating [X], [Y] and [Z] on the one hand from [D] on the other.
Mr and Mrs Cowles Senior have no relationship whatsoever with [D], a child whom they have not met. As such, they realise the futility of pursuing any application in respect of him.
From [X], [Y] and [Z]’s point of view, their relationship with [D] cannot be regarded as fully formed. [D] is a little over six months of age. He cannot know his older half-siblings. They are unlikely to have any significant interactions with him at this stage.
For obvious reasons, the relationship between the children and their as yet unborn half-sibling is a potential one only. [X], [Y] and [Z] are unlikely to pine for either this child or [D], given the nascent relationship between the children concerned.

c) The willingness and ability of the parties to encourage a close and continuing relationships between the children and their parents

For reasons already provided, I am concerned that the mother has some blocks in the way of her ability to encourage and facilitate Mr Madden having a close and loving relationship with [X] and [Y]. It seems academic, at this point, to examine her facility, in this regard, in respect of Mr B.
A major theme of the mother’s case against Mr and Mrs Cowles Senior is that they have not closely considered how the children will maintain their relationship with her, in the event they are successful in their application. There is some substance to the mother’s criticisms. Mr and Mrs Cowles Senior propose the children spending weekend time with their mother, which will be built around other weekends [X] and [Y] spend with Mr Madden.
It also seems to me that Mr and Mrs Cowles Senior have not fully considered how angry Ms Cowles will be at any outcome which sees the children not living predominantly with her and how difficult this is likely to make arrangements for the children to spend time with their mother to be.
However, notwithstanding these criticisms, I do not think that Mr and Mrs Cowles Senior are intent on severing the children’s relationship with their mother. In my estimation, their motivation for becoming involved in these proceedings is to protect the children from harm. In the past, they have supported the mother’s care of the children in a wide variety of ways. As such, I have no reason to believe that they will not do their best, in what must inevitably be very difficult circumstances, to ensure that the children retain a sense of connection with their mother, if they are ultimately successful in their application.

d) The likely effect on the children of any changes in their circumstances

This is one of the more significant considerations in this case. If Mr and Mrs Cowles Senior are successful in their application, it will inevitably mean an enormous change of circumstances for the children concerned. Each child has predominantly lived with the mother since the date of his or her birth. If Mr and Mrs Cowles Senior are successful, [X], [Y] and [Z] will have to adjust to a new home environment and new primary carers. I must be careful not to under estimate the significance of this change.
In addition, it is Mr McDonagh’s view, which I share, that if Mr and Mrs Cowles Senior are successful, the mother will do everything in her power to undermine such an outcome, including placing each of the children concerned under psychological pressure. In the past, she has explained to [Y] that Mr and Mrs Cowles Senior are only interested in obtaining the care of the children for financial reasons.
Again, the central issue for the court is whether the concerns regarding the mother’s parenting of the children are so great that the significant change advocated by Mr and Mrs Cowles Senior is warranted. The matters which fall for consideration under this criterion, like all the other criteria under the Act, must be carefully balanced against one another. They cannot be twisted and turned, like the surface of a rubik’s cube, to achieve a perfect result. Inevitably the exercise involves an element of compromise – an attempt to find the least bad result for the children concerned.
Sadly, each of the children concerned in this case is habituated to change in one degree or another. This is because the mother’s lifestyle itself is one of change, which she inflicts on the children. She has frequently changed her place of residence and, as a result, the two older children concerned have often changed their place of schooling and all three have regularly moved.
In addition, in the past, the mother has utilised her parent’s home as a safe haven for herself and the children. Accordingly, Mr and

Mrs Cowles Senior’s home is familiar to each of the children, as is their mode of parenting. Accordingly, apart from the absence of their mother, the change is not likely to be one which the children will be incapable of accommodating, particularly in [X]’s case given her approval of it.
Mr and Mrs Cowles Senior’s case is predicated on the basis that the possible deleterious consequences of this one big change in the children’s circumstances is far outweighed by the many unsettling and unplanned changes in their lives, which are an inevitable consequence of the mother’s parenting skills and lifestyle choices.
In my view, there is significant substance to this submission. However, at a basic emotional level, it is difficult to conceive of a more significant change for the children than that of living away from their mother.

e) The practical difficulties and expense of the children spending time and communicating with each of their parents

It seems clear that Mr and Mrs Cowles Senior and Mr Madden are readily able to solve any logistical problems which may arise to prevent Mr Madden spending regular time and communicating with [X] and [Y] in future. Matters are unclear in respect of Mr B and [Z].
If the children live with their grandparents in future, significant logistical difficulty will arise in respect of the children spending time with their mother. This will not be because of the distance between the parties’ respective homes, rather it will be as a result of the emotional turmoil which will inevitably be precipitated by such an outcome. There is no obvious solution to this problem.
Up until this stage, the mother has ensured that the children concerned spend regular weekend time with their grandparents in accordance with the orders earlier made by Kelly FM. The mother currently lives in the northern suburbs of Adelaide and Mr and Mrs Cowles Senior live in [E] on the city’s northern rural fringe. The distances involved do not represent an insuperable barrier to the children spending regular periods of time with those who are most intimately concerned in their care.

f) The capacity of the parties to provide for the children’s emotional and educational needs

Again, this is one of the more seminal considerations in this case. I am gravely concerned that the mother is significantly deficient in her ability to provide for [X], [Y] and [Z]’s emotional and intellectual needs. [X] and [Y]’s school attendance records speak for themselves. They indicate that the mother has little interest in ensuring the children regularly attend school. As a result, [X] is exhibiting learning difficulties.
Mr McDonagh was gravely concerned at [Y]’s presentation to him, particularly his assertions that he needed to hit another child; his protestation that he was hyperactive; and his general level of poor language. Mr McDonagh considered that [Y] had behavioural problems. These issues reflect poorly on the mother’s capacity to provide for [Y]’s emotional needs.
In addition, it seems that, in the past, [X] has required psychological intervention as a result of suffering from some form of eating disorder. The exact aetiology of this disorder is unclear to me. What is concerning however is that the mother failed to attend with [X] at any follow-up appointments which had been arranged for her.
The mother’s household is frequently disrupted and chaotic. In such an environment, I am concerned that the children’s intellectual and emotional needs will be compromised. In addition, the mother has demonstrated in the past a propensity to put her own emotional needs and desires before those of the children concerned. This was most clearly demonstrated by her pursuit of her relationship with Mr H, which resulted in the uprooting of [X] and [Y] from the [E] Primary School.
On balance, given their greater maturity and my finding that they are motivated by benevolent considerations, I believe that Mr and

Mrs Cowles Senior are better placed to provide for [X], [Y] and [Z]’s emotional and intellectual needs than the mother.

g) The children’s maturity, sex, lifestyle and background

To some extent, this is a case about socio-economic considerations.

I am well aware of the danger of imposing middle class sensibilities on the mother, who comes from a deprived financial background. She is a single parent, who has been in receipt of social security payments for most of her adult life.
However, in this case, there is not an enormous gulf in the backgrounds of the parties concerned or their financial circumstances. Although

Mr and Mrs Cowles Senior are purchasing their own home, they are not people of means. They too, are in receipt of social security as their main means of financial support.
As a result of these factors, whatever is the outcome in this case, the children will enjoy the same sort of lifestyle, given the continuity in the parties’ respective backgrounds. What is important however is that

Mr and Mrs Cowles Senior are well settled in the [E] area and are unlikely to move in the future. It is likely to be of benefit to the children to have a settled home environment, which has been lacking in their lives up to this point.

h) Aboriginality

This is not a relevant consideration.

i) The attitude that each party has displayed to the responsibilities of being a parent

I accept that Mr and Mrs Cowles Senior are motivated by altruistic considerations in this case. I reject any suggestion that they have brought this case out of a desire to wound their daughter or to better themselves financially. Rather, they have acted as they have done because they have regretfully reached the conclusion that the mother has severe deficits as a parent and they need to act to ensure that [X], [Y] and [Z]’s interests are protected.
In my estimation, Mr and Mrs Cowles Senior are better placed than anyone to assess the mother’s level of insight in to and understanding of the responsibilities incumbent in being a parent. I do not consider them to be intrusive or over weaning grandparents, who are incapable of withholding their criticism because of their general disapproval of their daughter’s style of life. Nor do I think they are likely to set unrealistic or utopian standards by which they seek to measure the parenting of Ms Cowles.
To the contrary, up until this stage, they have assisted their daughter as much as possible, notwithstanding their disquiet at how she has led her life. It was their preference to be a safety net for the mother’s care of the children rather than the children’s principal providers of care. However, they have now reached the sad realisation that they must step in to safeguard the welfare of their grandchildren.
They have reached this position because of what occurred around the middle of 2007, when Ms Cowles uprooted the children from [E] and moved in with Mr H in [B]. In my view, this action, on the mother’s part, is symptomatic of the fact that she has a poor attitude to the responsibilities of being a parent.
On the other hand, the fact that Mr and Mrs Cowles Senior are prepared to act, in the way which they have done, knowing that it will inevitably lead to the destruction of their relationship with their daughter, indicates how seriously they would take the responsibilities of parenting the three children concerned.
I do not think that either Mr Cowles or Mrs Cowles Senior are naïve or blasé about the level of difficulty which will flow to them if they take over the parenting of these children. Nor do I think that they are dismissive of the inevitable restrictions which will be placed on their lifestyle if they assume the responsibility for parenting [X], [Y] and [Z].

j) Any family violence order involving the children

k) Any family violence order

There are no specific family violence orders applicable in this case. I have dealt with other issues arising in respect of family violence under the ambit of the primary considerations relevant under the applicable legislation.

l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
In my assessment, [X] and [Y], in particular, are vulnerable children. It seems likely that both will have problems at school, regardless of what is the outcome of this case. As such, it would be preferable if all the parties concerned could work together to achieve the best outcome for the children.
This is not likely to occur. The fact that Mr and Mrs Cowles Senior felt compelled to commence these proceedings has driven a wedge between them and their daughter. Ms Cowles is likely to regard every future action of her parents with either resentment or suspicion.
For their part, Mr and Mrs Cowles Senior accept that they are unlikely to ever have a trusting relationship with their daughter in future. They would be naïve to think that Ms Cowles will be accepting of a result which sees the children coming into their primary care. Obviously, these are not happy indicators for the prevention of future litigation between the parties concerned.
Inevitably, whatever is the outcome of this case, the potential for further proceedings between the parties (and indeed proceedings involving Mr B, Mr Madden and Mr S) must be high indeed. If the children remain living with the mother, the grandparents are likely to remain vigilant and so open to the possibility of other proceedings.
Similarly, if the children come into the care of Mr and Mrs Cowles Senior, arrangements for the children to maintain their relationship with their mother will be problematic in the extreme.
In short, there is no perfect outcome available in this case and whatever orders the court makes are likely to cause problems between the parties, which they are likely to have difficulty in resolving. As such, whatever is the outcome, the potential for further proceedings is high.

Conclusions

As I said at the outset of these somewhat lengthy reasons for judgment, this is a sad and problematic case, which provides no ready solution. In my view, the reasons why this is such a difficult and problematic case can be sheeted home to the mother’s poor parenting, as most obviously exemplified by [X] and [Y]’s poor school attendance and her decision to move in with Mr H in [B].

I have no such concerns about either Mr or Mrs Cowles Senior. I find them to be well motivated and altruistic individuals, who want only the best for [X], [Y] and [Z]. They are the best placed people to judge how successful or otherwise has been the mother’s parenting of the children. They are knock about people, who do not set out to judge Ms Cowles by any unrealistic standards.
To the contrary, up to this stage, they have overlooked many of their daughter’s failings as a parent being satisfied that it is better that they step in to help her from time to time rather than take over entirely in respect of her parenting. They are no longer prepared to countenance Ms Cowles’ poor parenting and feel compelled to act. This, together with [X] and [Y]’s poor schooling record convinces me that their concerns are real and serious.
In this case, I have reached the conclusion that the need to protect the children from harm, arising from neglect, should be given primacy. This consideration is closely related to one of the fundamental objects of Part VII of the Family Law Act – the need to ensure the children receive adequate and proper parenting to help them achieve their full potential [section 60B(1)(c)].
If the children concerned do not attend school regularly and arrangements for their care are subject to arbitrary change because of the chaotic way in which the mother chooses to lead her life, [X], [Y] and [Z] will not achieve their full potential. In addition, failure at school, as a result of non-attendance, has the potential to lead to psychological issues arising for each of the children concerned. There are already worrying signs that [X] and [Y] are not progressing well.
A basic level of education is an essential prerequisite to having a satisfactory and productive life. As such, attendance at school is not a mere incidental to childhood, rather it is an essential and indispensable part of it. Sadly, I have reached the conclusion that the mother has failed in the discharge of her responsibility of being a parent to [X] and [Y]. I am not satisfied that she is capable of change, no matter what degree of outside support she receives.
Accordingly, I have come to the conclusion that serious steps need to be taken now to safeguard the best interests of the children concerned. Necessarily, this must mean that [X], [Y] and [Z] live predominantly with their grandparents, who will ensure that they are properly cared for and attend school as required. This step will bring a level of stability, into the children’s lives, which has been lacking up to this stage.
Inevitably, such an extreme step will have implications for the level of relationship the children have with their mother. Obviously, the mother will have less day to day interaction with each of the children concerned and will be confined, at best, to seeing them on weekends and during school holidays.
However, I do not think that this step will leach all meaning from the children’s maternal relationship. Each of the children concerned will continue to know and love their mother. As such, an order which provides for [X], [Y] and [Z] to live with their paternal grandparents will not inevitably result in the severance of the children’s relationship with their mother or indeed inevitably result in the children having no relationship with either [D] or their soon to be born half-siblings. However, each of these various relationships will be different from those which would have maintained if the children continued to live with Ms Cowles.
The Full Court (albeit composed of a single judge) has said, in respect of Part VII of the Family Law Act “… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.[27] Clearly, the children will not have the optimal relationship with their mother if they live with their paternal grandparents, particularly given that such an outcome is likely to deepen the rift between the parties concerned, who were previously close.
[27] See Godfrey & Sanders (2007) 208 FLR 287 at 298 per Kay J
This is regrettable but unavoidable, if the children’s best interests are to be safe guarded. However, notwithstanding the obvious deficits in such an outcome, I am satisfied that Mr and Mrs Cowles Senior will be able to facilitate the children’s ongoing relationship with their mother, and, as a result of their previous engagement with her, [X], [Y] and [Z]’s relationship with Ms Cowles will remain meaningful.
Mr McDonagh regards the mother as a somewhat immature and manipulative person. I agree with this assessment. For obvious reasons, the mother is unlikely to accept this decision. Because of her temperament and lack of insight, the mother is likely to undermine the children’s relationship with their grandparents and will be liable to work to destabilise the orders which follow from this decision.
Above all, what [X], [Y] and [Z] need is continuity and stability in their care. As such, it is my view that there is considerable merit in

Mr McDonagh’s proposal that there be a moratorium in the mother spending time with the children until the orders, which will result from this decision, have had a chance to be bedded down.
Mr McDonagh proposes a period of six months. In my view, this is too long. I propose allowing the children to spend the final term of 2008, in their grandparents’ care, without spending any time with their mother. Thereafter, it is appropriate that the children have an opportunity to spend a week with their mother, during the 2008/2009 school holidays, as well as on the special occasions which arise in this period, which include Christmas Day and [Z]’s birthday.
Thereafter, the first term of 2009, in my view, provides the appropriate time at which the children should begin to spend alternate extended weekends with their mother, as well as half of school holidays. I think that this outcome represents an appropriate balance between ensuring the children’s intellectual and emotional needs are met and they continue to have a sufficiently meaningful relationship with their mother, and in [X] and [Y]’s case, with their father.
I hope that this decision will not cause the deep rift between the parties to become a permanent one. Whether it does or not chiefly depends upon the attitude of Ms Cowles. Certainly, in the past, Mr and

Mrs Cowles Senior have been supportive of their daughter. I have no reason to believe that they will not be supportive of her again, if they are persuaded that she has made the necessary changes in her life.
I am well aware that there is a certain level of artificiality of this decision. I have found the mother’s parenting to be extremely deficient. Nonetheless, I am making no orders in respect of [D]. As no orders are sought, I have no authority to make any such order.
Mr Bowler, counsel for the mother, points to the fact that the welfare authorities in South Australia have not chosen to involve themselves in these proceedings or to bring their own proceedings pursuant to the legislation which governs their activities. No doubt, it being the mother’s case that her failings as a parent do not breach any statutory mandated standard.
This decision, on the part of the Department for Families and Communities, does not preclude me from reaching the conclusion that [X], [Y] and [Z] require protection from the prospect of sustaining either psychical or psychological harm, as a result of exposure to neglect. As a result of the application of the grandparents and the appointment of the Independent Children’s Lawyer, I have had an opportunity to conduct an inquiry into the mother’s parenting.
Given the relationship between the parties, section 61DA of the Family Law Act does not apply to this case. At this stage, I think it appropriate and likely to be in [X], [Y] and [Z]’s best interests that the applicant grandparents have sole responsibility in respect of making major long-term decisions in respect of the children.
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Given the problems relating to the children’s attendance at school and other issues relating to their health and behaviour, I believe it is appropriate to place these responsibilities in the hands of the grandparents.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and thirty (330) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 15 October 2008