De Haven and De Haven and Ors

[2015] FamCA 581

FAMILY COURT OF AUSTRALIA

DE HAVEN & DE HAVEN & ORS [2015] FamCA 581

FAMILY LAW – CHILDREN – Where the Applicant Father initially sought orders in relation to the two subject children as between himself and the Respondent Mother – Where the children currently live with the 1^st Intervener paternal grandparents pursuant to interim orders – Where the eldest child’s biological father is the 2^nd Intervener – Discussion of the legislative provisions in respect of who is a “parent” in these proceedings

FAMILY LAW – CHILDREN – Best Interests – Where the children’s relationships with the paternal grandparents are important and stabilising – Where the parties unanimously agreed the children should remain permanently resident with the paternal grandparents – Where both children enjoy loving relationships with the applicant – Where the applicant poses a risk of harm to the children by his subjection of them to physical abuse – Children to spend regular supervised time with the applicant for a defined period – Where the children have meaningful relationships with the mother – Where the mother has an impaired parenting capacity and possesses limited insight into the effect of her behaviour on the children – Where the mother poses a risk of harm to the children by her subjection of them to physical abuse – Children to spend graduating supervised time with the mother for a defined period – Where the eldest child has no relationship at all with his biological father – Where the eldest child’s best interests are served by the correction of his misunderstanding about his paternity – Eldest child to spend supervised time with his biological father three times per year – Where until the mother’s time with the children graduates to unsupervised time, the 3^rd Intervener maternal grandmother is restrained from spending time with the children

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply in respect of either child – Where the children’s best interests warrant the paternal grandparents having parental responsibility for them – Where it was agreed they should have equal shared parental responsibility.

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D

Aldridge & Keaton (2009) FLC 93-421
Maldera v Orbel [2014] FamCAFC 135
Marriage of B & B (1993) FLC 92-357
Valentine & Lacerra & Anor [2013] FamCAFC 53; (2013) 49 Fam LR 255

APPLICANT: Mr De Haven

RESPONDENT: Ms De Haven

1st INTERVENERS:

Mr B De Haven &

Ms C De Haven

2nd INTERVENER: Mr D

3^rd INTERVENER: Ms E

INDEPENDENT CHILDREN’S LAWYER: Ms Blackman, Legal Aid NSW Gosford

FILE NUMBER: NCC 1478 of 2014

DATE DELIVERED: 23 July 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 6, 7, 8 & 9 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sharrock

SOLICITOR FOR THE APPLICANT: Ashby Family Solicitors

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Flintoff  Lawyers

COUNSEL FOR THE 1st INTERVENERS: Mr McMahon

SOLICITOR FOR THE 1st INTERVENERS: Catalyst Family Lawyers

COUNSEL FOR THE 2nd INTERVENER: Ms Winfield

SOLICITOR FOR THE 2nd INTERVENER: D J Chapman Solicitors

COUNSEL FOR THE 3^rd INTERVENER: Not Applicable

SOLICITOR FOR THE 3^rd INTERVENER: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Blackman, Legal Aid NSW Gosford

Orders

Former orders discharged

1. All former orders relating to the children (collectively “the children”) F, born … 2011, (“the eldest child”) and G, born … 2012, (“the youngest child”) are discharged.

First Interveners and children

1. The First Interveners shall have equal shared parental responsibility for the children.

2. The children shall live with the First Interveners.

Applicant and children

1. Subject to Order 5 hereof, the First Interveners and Applicant shall each take all reasonable steps to ensure that the children spend time with the Applicant, unless otherwise agreed between them, each alternate Sunday from 10.00 am to 5.00 pm, commencing on the first Sunday following these orders.

2. The First Interveners and Applicant shall ensure that any time spent by the children with the Applicant pursuant to Order 4 hereof is supervised by the First Interveners, or either one of them, until the youngest child commences school.

Respondent and children

1. The First Interveners and Respondent shall each take all reasonable steps to ensure that the children spend time with the Respondent, unless otherwise agreed between them:

   (a)Up to 31 December 2016, for three hours on the first Saturday of each calendar month, on the conditions set out in Order 7 hereof;

   (b)Thereafter, until the youngest child commences school, for three hours each alternate Saturday, commencing on the second Saturday after the last visit pursuant to Order 6(a) hereof, on the conditions set out in Order 7 hereof; and

   (c)Thereafter, each alternate Saturday from 10.00 am until 5.00 pm, commencing on the second Saturday after the last visit pursuant to Order 6(b) hereof.

2. For the purpose of implementing Orders 6(a) and 6(b) hereof:

   (a)The supervisor of the time spent by the children with the Respondent shall be staff at “Phoenix Rising”, staff at “Relationships Australia”, or some other person or entity nominated by the staff of Relationships Australia, in that order of priority (“the supervisor”).

   (b)The First Interveners and Respondent shall each forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

   (c)The time that is to be spent by the children with the Respondent shall commence at the time designated by the supervisor.

   (d)The venue at which the time is to be spent by the children with the Respondent shall be designated by the supervisor.

   (e)The Respondent shall pay any costs due to the supervisor for supervision of the children with her.

   (f)The First Interveners shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children with the Respondent.

   (g)The First Interveners and Respondent shall each comply with all reasonable requests and directions of the supervisor.

   (h)The Respondent is restrained from causing or permitting any other person, including the maternal grandmother, from attending the supervised visits in her company.

   (i)If the Respondent fails to attend two consecutive sessions at which the children were due to spend time with her pursuant to Order 6(a) hereof, then Order 6 hereof is suspended.

3. The First Interveners and the Respondent shall take all reasonable steps to ensure that the children are able to communicate with the Respondent in the following manner:

   (a)By the Respondent being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays, Mother’s Day, and Christmas Day, and

   (b)By the First Interveners promptly sending to the Respondent:

   (i)Written acknowledgement of receipt of the Respondent’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the Respondent.

Second Intervener and eldest child

1. The First Interveners and the Second Intervener shall each take all reasonable steps to ensure that the eldest child spends supervised time with the Second Intervener, unless otherwise agreed between them, for three hours on the last Saturday of January, May and September each year, but if any such visit would conflict with time spent by the children with the Respondent pursuant to Orders 6(b) or 6(c) hereof, the time to be spent by the eldest child with the Second Intervener pursuant to this Order shall occur on the next Saturday thereafter.

2. For the purpose of implementing Order 9 hereof:

   (a)The supervisor of the time spent by the eldest child with the Second Intervener shall be staff at “Relationships Australia”, or alternatively, some other person or entity nominated by the staff of that organisation (“the supervisor”).

   (b)The First Interveners and Second Intervener shall each forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor.

   (c)The time that is to be spent by the eldest child with the Second Intervener shall commence at the time designated by the supervisor.

   (d)The venue at which the time is to be spent by the eldest child with the Second Intervener shall be designated by the supervisor.

   (e)The Second Intervener shall pay any costs due to the supervisor for supervision of the eldest child with him.

   (f)The First Interveners shall cause the delivery of the eldest child to, and the collection of the eldest child from, the supervisor at the commencement and conclusion of the time spent by the eldest child with the Second Intervener.

   (g)The First Interveners and Second Intervener shall each comply with all reasonable requests and directions of the supervisor.

   (h)If the Second Intervener fails to attend two consecutive sessions at which the eldest child was due to spend time with him, then Order 9 is suspended.

3. The First Interveners and the Second Intervener shall take all reasonable steps to ensure that the eldest child is able to communicate with the Second Intervener in the following manner:

   (a)By the Second Intervener being able to send letters, cards, and/or gifts to the eldest child on or about dates proximate to the child’s birthday, Father’s Day, and Christmas Day, and

   (b)       By the First Interveners promptly sending to the Second Intervener:

   (i)Written acknowledgement of receipt of the Second Intervener’s written communication, and

   (ii)Any letters, cards, photographs, or other written communication that the eldest child wishes to be conveyed to the Second Intervener.

Miscellaneous orders

1. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

2. Each party is restrained from denigrating any other party in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating any other party.

3. The First Interveners shall forthwith take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the Second Intervener’s paternity of the eldest child, and that a fresh birth certificate issues for the eldest child disclosing the Second Intervener’s paternity of the child.

4. The First Interveners shall authorise and request the principal of any school attended by either child to provide to the Applicant, Respondent, and Second Intervener, at the respective expense of those parties, copies of all school reports and school photograph order forms relating to the children.

5. Leave is granted to the parties to provide a sealed copy of these orders to:

   (a)The supervisor of the time spent by the children, or eldest child, with the Respondent and Second Intervener;

   (b)The Registrar appointed under the Births, Deaths, and Marriages Registration Act 1995 (NSW);

   (c)The principal of any school attended by either child; and

   (d)The provider of any counselling or other medical service to either child.

6. The First Interveners shall forthwith inform the other parties, and keep the other parties informed, in writing, of their current residential address, mobile telephone numbers, and email address.

7. The Applicant, Respondent, and Second Intervener shall each forthwith inform the First Interveners, and keep them informed, in writing, of their respective current residential addresses, mobile telephone numbers, and email addresses.

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

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

10. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1478  of 2014

Mr De Haven

Applicant

And

Ms De Haven

Respondent

And

Mr B De Long & Ms C De Haven

First Interveners

And

Mr D

Second Intervener

And

Ms E

Third Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

1. An early explanation of the retinue of parties who participated in these proceedings and the central issues in dispute between them will aid in understanding these reasons.

2. The respondent mother (“the mother”) has two young children, currently aged four and two years respectively, who are the subject of the proceedings.

3. The applicant father (“the applicant”) is the biological father of the youngest child. He commenced these proceedings in June 2014.

4. The first interveners (collectively “the paternal grandparents”, or individually the “paternal grandmother” and “paternal grandfather”), who are biologically related to only the youngest child, intervened in the proceedings in August 2014.

5. The second intervener (“the intervener”) is the biological father of the eldest child. He intervened in the proceedings in November 2014.

6. The third intervener (“the maternal grandmother”) intervened in the proceedings in February 2015.

7. An Independent Children’s Lawyer was appointed to represent the interests of the children.

8. The parties unanimously agreed the two children should remain living permanently with the paternal grandparents, leaving only two essential issues to be resolved in this litigation. The first was whether the paternal grandparents should share parental responsibility for the children with the mother. The second was whether, because of risks of harm allegedly posed to the children, some form of restriction should confine the children’s future interaction with the mother, applicant, intervener, and/or maternal grandmother.

Short history

1. The two children were born in 2011 and 2012.

2. The mother had a brief relationship of only several months duration with the intervener, which ended in November 2010 while she was pregnant with the eldest child. The mother probably knew, but was uncertain about, the child’s paternity. Paternity testing carried out during these proceedings proved to the parties’ satisfaction that the intervener is the father of the eldest child.

3. In about March 2011, while pregnant with the eldest child, the mother formed a relationship with the applicant, whom she had known when they were at school together some years before. They commenced cohabitation and later married in 2012.

4. From about mid-2012, the eldest child began to progressively spend more time in the care of the maternal grandmother until the point was reached, sometime between late 2012 and mid-2013, that he lived primarily with her.

5. The youngest child lived with the applicant and respondent from his birth in November 2012 until March 2014.

6. In March 2014 the mother physically abused the eldest child. She smacked him so hard she inflicted bruising, which the maternal grandmother drew to the attention of staff at the child’s pre-school and which was then reported to the NSW Department of Family and Community Services (“the Department”).

7. That event precipitated the marital separation of the applicant and mother. They ceased cohabiting and the mother was charged for her assault upon the eldest child. The mother and youngest child moved to live with the maternal great grandparents and the eldest child remained primarily resident with the maternal grandmother. Nonetheless, the maternal grandmother and the maternal great grandparents live in the same street so the children, mother, and maternal grandmother spent quite a lot of time together.

8. These proceedings were commenced by the applicant in June 2014, as he was dissatisfied with the level of involvement he was allowed by the maternal family in the children’s lives.

9. Interim orders were consensually made between the applicant and mother providing for the children to live with the mother, provided they remained resident with the maternal grandmother, and for the children to spend time with the applicant each Saturday under the supervision of the paternal grandparents.

10. In addition to the allegations of the mother’s physical abuse of the eldest child, allegations were made by the mother about the applicant’s improper sexual arousal around the children. By reason of the nature of the allegations made against both parties, the proceedings were then transferred by the Federal Circuit Court to this Court and entered into the Magellan protocol.

11. Further interim orders were made in August 2014, which substantially re-structured the children’s care arrangements. The orders granted the paternal grandparents leave to intervene in the proceedings and provided for the children to live with them instead. Provision was also made for the children to spend time with the mother and applicant upon certain conditions: that they submit to urinalysis; that the applicant must live separately from the paternal grandparents; and that the time spent by the children with both the mother and the applicant must be supervised by either one of the paternal grandparents. Those orders applied until final trial.

12. The intervener and maternal grandmother were each later granted leave to intervene in the proceedings.

13. The proceedings were fixed for trial in April 2015, but the trial was postponed until July 2015, due to the maternal grandmother’s serious ill-health.

The proposals

1. The paternal grandparents sought the exclusive allocation to them of parental responsibility for the children.

2. The mother always sought to be included in the allocation of parental responsibility for the children, but at the beginning of the trial she announced her abandonment of that application. No other party sought any share in the exercise of parental responsibility for the children, so the trial proceeded on the basis that the paternal grandparents would exclusively exercise parental responsibility for the children.

3. Although it was uncontentious the children should live with the paternal grandparents, all parties had quite different ideas about the extent of the roles the other parties should play in the children’s lives.

4. The paternal grandparents’ proposal, set out in their Response filed on

   
   

   18 March 2015, provided for the children to spend unsupervised time frequently with the applicant, to spend only supervised time with the mother on only four occasions each year, and to have no interaction at all with either the intervener or maternal grandmother.

5. The mother resiled from the proposal set out within her Amended Response, filed on 13 April 2015. During final submissions, she tendered a minute of the orders she instead proposed.[1] She acknowledged her willingness for the children to continue spending supervised time with her once per month for another 18 months, with such supervision to be provided professionally rather than by either of the paternal grandparents. Upon dispensation of the supervision, she expected the children would spend time with her on a gradually expanding regime, which would culminate in alternate weekends and other special occasions.

   [1] Exhibit M1

1. In final submissions, the applicant abandoned the orders set out in his Amended Application, filed on 5 March 2015, and he instead adopted the Independent Children’s Lawyer’s proposal in almost all respects. The Independent Children’s Lawyer’s proposal, contained within a minute tendered at the close of the evidence,[2] provided for the children to spend time with the applicant whenever agreed between him and the paternal grandparents, subject to his supervision for an initial period of six months. It was further proposed the children spend supervised time infrequently with the mother, the eldest child spend supervised time infrequently with the intervener, and neither child spend any time with the maternal grandmother.

   [2] Exhibit ICL4

2. During final submissions, the intervener tendered a minute of the orders he sought,[3] which were quite similar to the orders he earlier proposed in his Response, filed on 25 March 2015. He sought that the eldest child spend time with him once per month for six months, and thereafter once per fortnight. He accepted all visits would be confined to two hours duration and be supervised at a contact centre.

   [3] Exhibit INT1

3. The maternal grandmother pressed for the orders set out within her Response, filed on 13 March 2015. In the knowledge the mother did not press an application for the children to spend “substantial and significant time” with her, during which time the maternal grandmother could have seen the children, she pressed her own application for the children to spend time with her on alternate weekends, for half of school holidays, and on other special occasions.

The evidence

1. The applicant relied upon his affidavit, filed on 1 April 2015, and the affidavit of the paternal great grandmother, filed on 30 March 2015.

2. The mother relied upon her affidavit filed on 13 April 2015.

3. The intervener relied upon his affidavit filed on 9 April 2015.

4. The paternal grandparents relied upon their affidavits filed on 2 April 2015.

5. The maternal grandmother relied upon her affidavit filed on 13 March 2015.

6. All parties and the Independent Children’s Lawyer relied upon:

   (a)The Magellan Report, dated 30 July 2014, furnished to the Court by the Department; and

   (b)The Family Report, dated 3 October 2014.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

The paternal grandparents

1. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44]-[48], [65], [74], [109]-[112], [119]). Nevertheless, the Act does not import any presumption in favour of parents over other interested adults in the determination of proper parenting orders (see Maldera v Orbel [2014] FamCAFC 135 at [79]-[81]; Valentine & Lacerra & Anor [2013] FamCAFC 53 at [42]-[43]; Aldridge & Keaton at [59]-[61], [75]-[81], [83]).

2. The relationships of the children with the paternal grandparents are not primary considerations under s 60CC(2)(a) of the Act, but are relevant considerations under s 60CC(3)(b) of the Act. The children’s relationships with the paternal grandparents are a particularly important feature of the evidence in this case, since it was common ground the children would continue to live with them.

3. The Family Consultant observed, without contradiction, that the children significantly improved their behaviour and social skills in a relatively short period of time after moving to live with the paternal grandparents in August 2014.[4] Axiomatically, they would not have been able to achieve such progress unless the children’s relationships with the paternal grandparents were important and stabilising. The Family Consultant observed the paternal grandparents’ control of the children was superior to that able to be exercised by the applicant, mother, or maternal grandmother.[5]

   [4] Family Report, paras 100, 121-126

   [5] Family Report, paras 157-165

4. The presumption of equal shared parental responsibility for children only applies in favour of the “parents” of the children (s 61DA(1)). However, the presumption of equal shared parental responsibility does not apply to either child in the circumstances of this case, so the investiture of the paternal grandparents with parental responsibility for them is straightforward.

5. The presumption of equal shared parental responsibility does not apply in respect of the eldest child, since the evidence proved the mother abused the eldest child (s 61DA(2)(a)) and the intervener perpetrated family violence upon the mother (s 61DA(2)(b)).

6. The presumption of equal shared parental responsibility does not apply in respect of the youngest child, since the evidence demonstrated the mother certainly, and applicant probably, physically abused his sibling in March 2014 (s 61DA(2)(a)).

7. The inapplicability of the presumption of equal shared parental responsibility in respect of both children does not result in any other default form of allocation of parental responsibility for them. An order allocating parental responsibility is a parenting order (s 64B) and so the nature of such order is guided by the children’s best interests (ss 60CA, 65AA). The interim allocation of parental responsibility to the paternal grandparents is disregarded when determining the final allocation of parental responsibility (s 61DB), but since it was common ground the children have valuable relationships with the paternal grandparents and the children should remain resident with them, the children’s best interests warrant the paternal grandparents having parental responsibility for them. It was agreed they should have equal shared parental responsibility, rather than sole or joint parental responsibility. The orders so provide.

8. Given that equal shared parental responsibility is not allocated to the “parents” of either child, s 65DAA of the Act is not engaged, and so it is unnecessary to consider making orders that would require either child to either live with his parents for “equal time”, or alternatively, to primarily live with one and spend “substantial and significant time” with the other.

The applicant

1. The applicant is not the biological father of the eldest child and is therefore not his “parent”, even though he regards himself as the eldest child’s “psychological father”, treats the eldest child as his own biological child, and does not want to differentiate him from the youngest child.[6] Consequently, the nature of the eldest child’s relationship with the applicant is a consideration under s 60CC(3)(b)(ii) rather than s 60CC(2)(a) of the Act.

   [6] Family Report, paras 2, 9, 107

2. By contrast, the applicant is the biological father of the youngest child and the nature of their relationship is a consideration under s 60CC(2)(a) of the Act.

3. Regardless of the technicality, both children enjoy loving relationships with the applicant,[7] which fact was not the subject of any dispute.

   [7] Family Report, para 167

4. The prospect of the children being denied the full measure of benefit from their relationships with the applicant arose out of evidence adduced by the mother, which was also seized upon by the intervener and maternal grandmother.

5. Not long after these proceedings were commenced by the applicant, the mother filed a Notice of Risk alleging facts which caused her to believe the children were at risk of harm through their sexual abuse by the applicant. She alleged the applicant experienced penile erections on occasions when playing with the children and that the eldest child inserted fingers in his own anus from time to time.

6. Importantly, both those facts were known to the mother in 2013, while her marriage to the applicant was still intact, and such facts did not cause her to doubt the applicant’s parental competence. Her inclination to therefore raise the issue in July 2014 once this litigation was underway had the appearance of her merely using the allegations for forensic advantage. Even so, the allegations were serious and require consideration.

7. The applicant’s penile erections and the eldest child’s digital penetration of his anus were reported to the Department in October and December 2013. The Department accepted the veracity of the medical advice received by the applicant at the time, to the effect that it was normal for most young men to experience erections “all the time in any number of circumstances”, and concluded there was no risk of serious harm to the children.[8] The mother attended the medical appointment and heard that advice for herself.[9] There is no evidence of any recurrence of the applicant’s erections around the children since 2013. The mother said in cross-examination she was dissatisfied with the advice the applicant received, but her dissatisfaction was not evident from her willingness to continue cohabitation with the applicant for months afterwards. It was not until she was charged for her assault of the eldest child in March 2014 that she decided to separate from the applicant.

   [8] Magellan Report, pages 2, 3, 4, 5; Family Report, para 65; Applicant’s affidavit, para 56

   [9] Family Report, paras 56-57

8. The Department did not consider the eldest child’s digital penetration was worthy of further investigation either, for which decision there were innocuous and obvious reasons. The paternal grandmother suspected the eldest child suffered with worms, which caused his anal irritation, and after she administered treatment to him for that condition the behaviour ceased. The mother consulted a doctor and was advised the eldest child’s behaviour was unlikely to be related to any “inappropriate sexual activity”.[10] That opinion was repeated by the Family Consultant in cross-examination. She said such behaviour by the eldest child might even be attributable to his attachment disorder, if not the physiological explanation of the worms.

   [10] Family Report, paras 60-62

9. Notwithstanding such benign explanations, the mother and maternal grandmother both maintained the applicant still posed a risk of harm to the children. They both said so to the Family Consultant[11] and again in cross-examination. The mother even told the Family Consultant,[12] and repeated in cross-examination, she rejected the Department’s conclusion and nothing could ever re-assure her there is no such risk. The intervener also opportunistically submitted that the father posed some ill-defined risk of that sort.

   [11] Family Report, para 96

   [12] Family Report, para 143

10. While the mother and maternal grandmother may genuinely believe the applicant continues to pose a risk of harm to the children through his subjection of them to sexual abuse, the evidence does not reasonably support the existence of any such risk.

11. However, the evidence did satisfactorily prove that the applicant does pose another risk of harm to the children: the risk of their harm by his subjection of them to physical abuse. That risk is proven by several pieces of evidence.

12. First, the applicant once bit the eldest child on the arm to “teach him a lesson” after the child had bitten him. The bite caused marks to be left on the eldest child’s skin. The mother and maternal grandmother were not challenged about the truth of that evidence.[13] In such circumstances, the applicant’s behaviour was retributive and abusive, not merely disciplinary.

    [13] Family Report, para 53

13. Second, it was uncontroversial that the applicant – not just the mother – used corporal punishment on both children, despite their young age. The applicant said in cross-examination they did so frequently – about “a couple of times a week”. They even used other bizarre disciplinary techniques, like physical restraint of the children and spraying them with water.[14] The maternal grandmother saw at least the mother do so.[15]

    [14] Family Report, paras 53, 81, 82, 104

    [15] Exhibit ICL3, paras 7-9

14. Third, the applicant also assaulted the eldest child on the same occasion the mother did so in March 2014. Although the mother was charged for the offence, the applicant was not. The mother consistently alleged the applicant also smacked the eldest child that day,[16] which the applicant falsely refuted. He carefully abstained from either admission or denial in his affidavit,[17] but during cross-examination he said he decided not to smack the eldest child once he drew down the child’s nappy and saw the marks on his buttocks already inflicted by the mother. That evidence was untruthful. In his recorded interview with police shortly after the incident, the applicant admitted he smacked the eldest child on the bare skin of his bottom on that occasion and it was only afterwards he noticed the marks on the child’s buttocks.[18] He knew the child’s injuries resulted from the beating he received that day, which he admitted was not an acceptable form of discipline.[19] He also admitted he had smacked the child in the past.[20] The paternal grandmother conceded in cross-examination the applicant admitted to her, at around the same time, that he smacked the eldest child on that occasion, but he told her he did so over the top of his nappy. The applicant’s evidence, his admissions to police, and his admission to the paternal grandmother were therefore all inconsistent and irreconcilable.

    [16] Mother’s affidavit, para 34

    [17] Applicant’s affidavit, para 47

    [18] Exhibit ICL2, Q.83-93, 105, 118

    [19] Exhibit ICL2, Q.138, 158-159

    [20] Exhibit ICL2, Q.75-81, 106-108

15. Significantly, the applicant knew the mother was in an agitated state trying to control the eldest child on that occasion. She was crying, shaking, and asked him to deal with the child. He saw the injuries on the child’s buttocks at or about the same time he administered the child with even more physical punishment.[21] It was witless and cruel of him to do so. Even though he was not charged by police, in the circumstances, his conduct probably exceeded lawful chastisement and amounted to an assault. It was physically abusive. His deceit about the extent of his involvement in that sad incident tends to sap the strength of any inference about his contrition. If he is not genuinely remorseful, it is more difficult to accept any suggestion such conduct will not be repeated.

    [21] Applicant’s affidavit, paras 46-47

16. The applicant suffers from depression. He presented to the Family Consultant with “markedly flattened affect and a degree of lethargy”,[22] which is precisely how he appeared throughout the trial. The Family Consultant’s unchallenged opinion was the applicant was “not particularly mature and is somewhat ill-equipped for the very challenging task” of raising the children.[23] He encountered trouble capably caring for the children even in the short observation session conducted by the Family Consultant,[24] which led the Family Consultant to conclude he would benefit from more education about child development and parenting techniques.[25] The applicant did not present as a person with the vitality, enthusiasm, and experience necessary to take much responsibility for the care of active young children.

    [22] Family Report, para 99, 103

    [23] Family Report, para 118

    [24] Family Report, para 157

    [25] Family Report, para 174

17. The orders should enable the children to spend time with the applicant, but not in an unconfined way. The risk of either physical or psychological harm he still poses to them through their subjection to physical abuse needs to be curtailed. The children should be the subject of supervision when in his care. There is no need for such supervision to be indefinite, but it cannot be so ephemeral as to be pointless.

18. The six months supervision proposed by the Independent Children’s Lawyer was not enough. She conceded she initially considered proposing indefinite supervision, but her vacillation only demonstrated her uncertainty and the relative arbitrariness of striking the right balance.

19. The orders require the applicant’s supervision with the children until the youngest child starts school, which will likely be in January 2018. The attendance of both children at school will be a protective measure, because teachers are mandatory reporters of suspected child abuse and any suspicious injuries to either child will likely be reported to authorities for investigation.

20. The orders require the paternal grandparents, or either of them, to provide the supervision until that point in time. It is generally recognised that aligned family members do not make for ideal supervisors (see Marriage of B & B (1993) FLC 92-357 at 79,780-79,781), but that is not likely to be the case with the paternal grandparents. They each gave credible evidence of their intention to faithfully observe the Court’s orders. The paternal grandmother said in cross-examination she believed the applicant still needed someone to “keep an eye on him with the children” and the Family Consultant also said in cross-examination she was satisfied the paternal grandparents would “watch [the applicant] like a hawk”.

21. The orders permit the paternal grandparents and the applicant to agree between themselves when the children spend time with the applicant, provided the requirement for supervision is observed for the period over which it is imposed. That is because the applicant is likely to return to live with the paternal grandparents at the conclusion of this litigation and, given their probable common residence, their supervisory duties would not then be unduly burdensome. If the applicant and paternal grandparents cannot agree about when the children should spend time with the applicant, either because they live apart or some other disharmony descends on their relationship, the orders provide for a default regime of interaction between the children and the applicant for one day each fortnight.

1. Orders recognising the likelihood of agreement between the paternal grandparents and the applicant, subject to a default regime, were contemplated by the paternal grandparents and Independent Children’s Lawyer.[26]

   [26] Response filed 18/3/15, Order 3; Exhibit ICL4, Order 4

The mother

1. Both children have meaningful relationships with the mother. The Family Consultant observed the children to be happy to see her,[27] which corroborated the mother’s evidence in cross-examination that the children run excitedly to her when they visit her at the supervision venue under the interim orders.

   [27] Family Report, para 159

2. Nevertheless, the Family Consultant reported that Departmental caseworkers previously assessed the children’s attachment to the mother to be either “disorganised” or “disordered”, and she formed the same impression.[28] Of course, the children’s disorganised or disordered attachment to the mother does not mean their relationships with her are not meaningful, but it does mean they fail to derive as much benefit from their relationships with her as they desirably should.

   [28] Family Report, paras 169, 173; Magellan Report, page 7

3. The derivation by the children of only limited benefit from their relationships with the mother is a significant consideration under s 60CC(2)(a) of the Act, particularly since she also poses risks of harm to the children, which risks are primary considerations under s 60CC(2)(b) of the Act. The protection of the children from such risks of harm takes precedence over the importance of their relationships with the mother (s 60CC(2A)).

4. As already noted, the mother assaulted the eldest child in March 2014. She repeatedly beat him by smacking his bottom, which caused severe bruising. That event was a culmination of her continual frustration with failed attempts to control the behaviour of both children, but particularly the eldest child. Her inability to cope with him was the reason he lived predominantly with the maternal grandmother. The mother admitted the maternal grandmother was the eldest child’s “primary carer”.[29] He was only visiting the mother and applicant on the occasion in March 2014 when they both physically abused him.

   [29] Family Report, paras 94, 140

5. The mother was charged with “assault occasioning actual bodily harm” over the incident. She pleaded guilty to the offence, which resulted in no perceptible sentence and only the imposition upon her of an apprehended violence order to protect both children.[30] It should not be thought that such leniency reflected the triviality of the incident, because it was undoubtedly serious. The facts presented at the sentence hearing before the State court were tendered in these proceedings.[31] They disclose an incident that lasted over five hours, during which the mother repeatedly pulled down the child’s nappy and smacked his naked buttocks. She had to leave the house to calm down. When she realised the extent of the child’s injuries she broke down crying. She conceded to police her conduct had been excessive. She admitted in cross-examination she was “out of control”.

   [30] Family Report, para 72

   [31] Exhibit ICL1

6. The police considered the mother was genuinely remorseful, but her evidence at trial did not convey the same impression. On at least two occasions during cross-examination, she asserted the force with which she struck the child on that occasion was not sufficient to cause him any injury at all. She seemed not to appreciate the significance of her plea of guilty to a charge that averred her assault had “occasioned actual bodily harm”, or her admission to police of the injury she caused.

7. The applicant also alleged the mother still smacked the children after the apprehended violence order was imposed upon her,[32] which if true, scuppered any inference of her contrition over the incident.

   [32] Family Report, para 112

8. The mother’s physical discipline of the children was a feature of her parenting style and betrayed her difficulty coping with the children. The children’s behaviour has been just as trying for the paternal grandparents, but they have not needed to resort to corporal punishment to correct it. The mother’s reactive disciplinary strategies are probably a product of her experiences, as her own upbringing was quite chaotic.[33]

   [33] Family Report, paras 12-14, 16-21, 24, 26, 30, 34-36

9. The mother’s impinged parenting capacity is not a figment of the paternal family members’ imaginations. Even the maternal grandmother has commented openly upon it. In April 2014, she informed the police of her opinions about the mother, including: she could not cope with the eldest child, she did not ever bond with the child, and she is lazy.[34] She told the Department around the same time that she thought the mother had “little in the way of parenting ability or resources”.[35] The Department assessed the risk of harm posed by both the mother and applicant to the children through “neglect and harm” to be “high”.[36]

   [34] Exhibit ICL3, paras 5-6

   [35] Family Report, para 43

   [36] Family Report, para 96

10. The mother possesses limited insight into the effect of her behaviour on the children. In the past she stated she “hated” the eldest child, even in his presence.[37] She tended to favour the youngest child, which apparently caused the eldest child to react violently.[38]

    [37] Family Report, paras 81, 83

    [38] Family Report, para 131

11. The Family Consultant attributed the children’s “attachment problems” and “problematic behaviour” to the mother’s impaired parenting capacity.[39] She was challenged about the validity of that conclusion in cross-examination, but adhered to her opinion. I do not accept the mother’s contention that the Family Consultant conflated the individual problems of the mother and maternal grandmother. Logically, as the Family Consultant pointed out,[40] the mother’s childhood experience of the maternal grandmother’s parenting capacity has influenced her own capacity as a parent.

    [39] Family Report, para 173

    [40] Family Report, para 173

12. Attempts by the mother to demonstrate improvement in her parenting capacity have faltered. She failed to engage satisfactorily with the Department in late 2013 when she was referred to the “Brighter Futures” program;[41] she started but did not finish another parenting program;[42] she started another parenting program during these proceedings, but only completed two-thirds of it;[43] she is still on a waiting list to participate in another parenting group;[44] and she consulted a psychologist, but has only seen him a few times, despite deposing months ago that she intended to consult with him fortnightly.[45]

    [41] Family Report, para 44

    [42] Family Report, para 139

    [43] Mother’s affidavit, para 55(i), Annex A

    [44] Mother’s affidavit, para 55(ii)

    [45] Mother’s affidavit, paras 55(iv), 55(v)

13. Such observations are not intended critically. The mother should be commended for her efforts to improve her parenting capacity and re-engage more productively with the children. However, her efforts have been belated and incomplete. The evidence was insufficient to prove any material improvement in her parenting capacity. I do not necessarily accept the Family Consultant’s opinion that the mother does not likely have the insight or ability to improve her parenting capacity at all,[46] but she has not yet established any tangible improvement and parenting orders must now be made by reference to the state of the existing evidence.

    [46] Family Report, paras 173, 177

14. The paternal grandparents asserted the mother’s parenting capacity was also impaired because of her misuse of alcohol, use of illicit drugs, and deteriorated psychological health, but I reject such assertions. There was no evidence at all of her misuse of alcohol while caring for the children and, while she admitted her past use of cannabis, her evidence that she ceased its use once she learned of her pregnancy with the eldest child several years ago was not contradicted. She missed some drug tests, but did provide numerous other negative test results. Her past depression and anxiety was relieved by medication.[47] She ceased taking the medication months ago and feels well.

    [47] Family Report, paras 7, 34, 99, 144

15. As is the case with the applicant, the children should be supervised when visiting the mother. Supervision will guard against the risk of the children being harmed through repetition of the cycle of her inability to control their behaviour, causing her loss of temper and her resort to physical punishment and abuse.

16. The supervision should not, however, be provided by the paternal grandparents. Their supervision of the mother under the interim orders has caused friction between them. The supervision should be provided professionally by the organisation the mother proposed. The orders require the mother to bear the cost of the supervision. She said she was willing to do so during cross-examination, which is a just outcome, given she pays no child support to the paternal grandparents. The mother presently has some casual employment, the income from which she will use to pay for the supervision.

17. The supervision of the mother need not be indefinite. It can be dispensed with when the youngest child begins school, for the same reason as that arrangement befits the applicant.

18. Supervision for the next two and a half years will give the mother additional time to improve her parenting skill. Even if, as the Family Consultant predicts, the mother is incapable of improving her parenting capacity, there is no warrant to maintain supervision indefinitely. Once the risk of her physical abuse of the children is attenuated, her other parenting deficits are not so pronounced as to justify her virtual elimination from the children’s lives.

19. The ways in which the Family Consultant envisaged the mother may endanger the children’s emotional well-being were not particularly convincing. The list she gave was exhausted with the following: impulsive behaviour; saying disruptive things to the eldest child; allowing the children to become aware of her adverse views about the paternal grandparents; and failing to diligently attend scheduled visits. No doubt it would be better if the children are not exposed to such conduct and comments, but they hardly justify the draconian outcome envisaged by the Family Consultant and paternal family.

20. I reject both the recommendation of the Family Consultant and the proposal of the paternal grandparents to restrict the children’s visits with the mother to only four supervised occasions each year. The Family Consultant was impelled to concede in cross-examination that such a regime of interaction would not enable the children to maintain their meaningful relationships with the mother.

21. I also reject the proposal of the Independent Children’s Lawyer to restrict the children’s visits with the mother to eight supervised occasions each year. She clearly acknowledged the children needed more time with the mother than the paternal grandparents considered necessary, but even her proposal was far too confined.

22. The mother is still only 22 years of age. It is instructive to note the concession made by the paternal grandmother in cross-examination about the mother’s parenting capacity. She said the mother was a loving, caring, generous person who was starting to show she could manage with the children. In her opinion, it was only the re-emergence of the maternal grandmother in the mother’s affairs that deprived the mother of those qualities. She was satisfied the mother could return to “child-focussed parenting” in the absence of the maternal grandmother. The paternal grandmother is the person now most responsible for care of the children and she probably has greater insight into the mother’s parenting capacity than anyone else. She told the Family Consultant she was prepared for the children to spend “limited, unsupervised day time with the mother in the future”.[48] Consequently, the orders impose a regime of that sort after the introductory period of supervision.

    [48] Family Report, para 134

23. Confining the children’s initial supervised visits with the mother to three hours each month and thereafter graduating to unsupervised visits with the mother one day each fortnight will sufficiently curtail their interaction with her to ensure the preservation of their physical and emotional safety. Any residual deficits in the mother’s parenting capacity are unlikely to cause the children any real harm when they will spend time with her in such short bursts.

24. The orders could probably have safely provided for the children to visit the mother for three hours each fortnight instead of monthly during the first 18 months of the period of supervision, but the mother only sought monthly visits over that period.[49] During the last 12 months of the period of supervision, the children’s short visits with the mother accelerate from monthly to fortnightly so there is a more seamless transition to the fortnightly unsupervised visits, which will likely begin in January 2018.

    [49] Exhibit M1, Orders 3-4

25. The mother, and consequently the children, have indigenous heritage.[50] Very little was done by the mother to inculcate the children with their cultural heritage in the past, but they are still only very young and she may aspire to their cultural instruction in the future. Even though the children’s future interaction with the mother will be quite restricted, it will not prevent her from teaching the children about their Aboriginality if she desires.

    [50] Family Report, paras 12, 67

The intervener

1. The intervener is the biological father of the eldest child.

2. Relevantly to s 60CC(2)(a) of the Act, the eldest child has no relationship at all with the intervener. Obviously enough, he cannot derive any benefit from a non-existent relationship. The real question is whether orders should be made to enable development of their relationship, from which the eldest child might ultimately derive benefit.

3. The Family Consultant conceded in cross-examination the eldest child would certainly benefit from knowing the truth about his paternity, which would require him to be disabused of the misconception that the applicant is his father. The Family Consultant gave evidence that process should begin as soon as possible, which evidence I accept in preference to the advice received by the paternal grandparents from some other therapist they consulted, to the effect that the eldest child’s understanding should not be rectified until he is nearly adolescent. The Family Consultant is a qualified psychologist with intimate knowledge of the background to the proceedings. The qualifications of the therapist consulted by the paternal grandparents are unknown, as are the assumptions she made in formulating her advice.

4. Despite being advised otherwise by the therapist they unilaterally chose for the eldest child, the paternal grandparents (and, at least initially, the applicant) believed there was no benefit to the eldest child in ever knowing the identity of the intervener as his biological father, but I reject their inexpert opinions in the face of the contrary expert opinion of the Family Consultant. The eldest child will benefit in the long term from knowing the truth about his paternity.

5. However, it is important to appreciate the distinction between, on the one hand, the eldest child being educated about his paternity so he understands his biological origins and, on the other, him being forced to foster a filial relationship with his biological father when he has so far psychologically identified the applicant as his father. The Family Consultant’s concessions in cross-examination certainly supported the former, but not necessarily the latter.

6. The intervener’s interest in the child has been somewhat belated. He knew of the mother’s pregnancy and suspected his probable paternity of the child, but when the mother severed their relationship during the pregnancy because of his violent conduct towards her, he did nothing to pursue his interest in the child. He cited the existence of the apprehended violence order, made against him for the mother’s protection, as an impediment, but he conceded he could still have commenced proceedings to pursue a relationship with the child. Instead he did nothing and, moreover, he paid no child support. His involvement in these proceedings was stimulated by his service with process by the other parties.

7. The mother certainly thwarted any attempt by the intervener to form a relationship with the eldest child, but her attitude was understandable. The intervener was violent and abusive towards her, which he admitted.

8. Undoubtedly the intervener now wishes to pursue a relationship with the eldest child, but the background helps inform the decision about whether the child’s best interests are served by allowing a significant incursion into his life by another adult who is currently unknown to him. The intervener does indeed propose a significant incursion into the child’s life. After monthly supervised visits for an initial period of six months, aside from weekly telephone communication, he wants the eldest child to spend two hours per fortnight with him at a contact centre for the rest of the child’s minority.

9. Understandably, the Family Consultant recommended a cautious approach be taken to the introduction of the intervener into the eldest child’s life, because his need for stability outweighs the interest of the intervener in the development of a new relationship with him.[51]

   [51] Family Report, paras 175, 178

10. The eldest child’s need for stability outweighs the intervener’s interest in the development of a new relationship with his son by such a significant margin that there is no justification for the kind of stepped process envisaged by the Family Consultant as a possible regime for their future interaction.[52] Quite properly, the Family Consultant only posited it as a conditional suggestion.

    [52] Family Report, Recommendation V

11. In circumstances where the eldest child experienced a chaotic life prior to his residence with the paternal grandparents, his best interests will not be served by making more room in his life to accommodate the demands of another adult. His best interests are served simply by the correction of his misunderstanding about his paternity. That will require his identification of the intervener as his real father, which can be accomplished by occasional supervised visits between them – three each year will suffice.

12. The evidence does not establish that the orders need to go further and make provision for the eldest child to spend more time with the intervener in the hope of developing a filial relationship, much like he already enjoys with the applicant. Even the intervener only proposed indefinite fortnightly supervised visits of two hours duration with the eldest child,[53] which restrictions he presumably realised were necessary to cure apprehension about his illicit drug use, his psychological stability, the family violence he committed upon the mother, and his untested parenting capacity. It is difficult to envisage how the eldest child could develop a healthy filial relationship with the intervener if their visits were confined in that way for the next 14 years.

    [53] Exhibit INT1, Orders 1(i), 1(ii)

13. The orders require the intervener to pay for the supervision. Although he is a disability pensioner, he said he would willingly pay for the supervision, irrespective of the cost. It is proper that he should do so. He pays no child support for the eldest child and there will only be three annual visits to fund.

The maternal grandmother

1. The maternal grandmother was sufficiently interested in the children’s future that she sought, and was granted, leave to intervene in the proceedings and seek orders about the children as a party. While her intention was laudable, she is confronted by many problems in her life – both physical and psychological.

2. The maternal grandmother’s physical capacity was quite impaired when she was interviewed by the Family Consultant in September 2014.[54] More recently, she was hospitalised for amputation of a lower limb. She was still confined to a wheelchair at the time of trial and was unspecific about when she is likely to be ambulatory with a prosthesis. Quite clearly, she has very restricted movement and could not possibly care for the children alone, even for short visits. She said she had support, but it was not made clear who would provide it. The maternal great grandparents were previously unable to cope with both children in their house. The maternal grandmother’s proposal for the children to visit her every alternate weekend and for half of school holidays was, for that reason alone, wholly impracticable.

   [54] Family Report, para 150

1. Her psychological health, which has been unstable for many years, only compounds her problems. Historically, even though she has been episodically stable, she reverts to periods of instability. Records of her psychological ill-health stretch from her early adulthood to as recently as May 2014, when she was hospitalised with suicidal ideation, following misuse of pain medication, and was unfit to continue caring for the eldest child.[55]

   [55] Family Report, paras 14-33, 76, 99; Magellan Report, pages 2, 4

2. The Family Consultant found the maternal grandmother to be emotionally fragile at the consultation in September 2014. Her demeanour vacillated between tearfulness and hostility[56] and when introduced to the children she cried loudly and made no attempt to hide her heightened emotion, which seemed to unsettle the children.[57] She was unable to detach from her subjective sense of injustice about the circumstances of the children’s residence with the paternal grandparents,[58] which sentiment was just as evident at trial. She said their evidence was untruthful and she was not prepared to admit the children were safe in their residential care. As the Independent Children’s Lawyer correctly submitted, the maternal grandmother’s dislike of the paternal grandparents was palpable.

   [56] Family Report, para 145

   [57] Family Report, para 162

   [58] Family Report, paras 48, 148

3. The Family Consultant concluded the maternal grandmother posed a serious risk of harm to the children.[59] Even so, the nature of the risk of harm she poses is psychological, not physical. I do not accept the maternal grandmother’s deficits are so seriously threatening to the children that she needs to be permanently eliminated from their lives, as the Family Consultant recommended,[60] and other parties proposed.

   [59] Family Report, paras 85, 96, 101, 153

   [60] Family Report, para 177, Recommendation IV

4. Even if it is accepted, as the Family Consultant opined, that the mother and maternal grandmother have a “toxic and enmeshed relationship”,[61] there was no clear articulation by the Family Consultant, the parties, or the Independent Children’s Lawyer of any reason to permanently restrain the children’s interaction with the maternal grandmother.

   [61] Family Report, para 177

5. Clearly enough, the maternal grandmother is not sufficiently equipped, either physically or psychologically, to have the sole and unsupervised care of the children. But that does not mean the maternal grandmother must be consigned to merely an early childhood memory for the children.

6. The mother would probably be assisted by exclusion of the maternal grandmother from the children’s supervised visits with her over the next couple of years, so there is good reason to restrain the mother from taking the maternal grandmother to those visits, which even the mother accepted as desirable. However, beyond that, when both children will be of school age, there was no convincing reason why the maternal grandmother should remain excluded from the children’s lives.

7. There should be no order that expressly provides for the children to spend time with the maternal grandmother in the future, but neither should there be any injunction restraining the mother from allowing the children to interact with the maternal grandmother when they visit the mother for one day each fortnight several years hence. By then, with the passage of time, the children’s residence will be so embedded with the paternal grandparents that the maternal grandmother will likely have lost all interest in any attempt to destabilise it.

Conclusion

1. The need for the children to live in a reparative environment with the paternal grandparents is of utmost importance. The interests of the other parties to play significant roles in the children’s lives must yield to their need for stability.

2. Both the applicant and mother have resented their past supervision with the children,[62] but they need to understand their parenting performance thus far has been unsatisfactory. Their supervision with the children is warranted for a while longer, until the children are at school, when a wider community of adults will then take an interest in the children’s welfare and report any suspected abuse or neglect to proper authorities.

   [62] Family Report, paras 104, 128

3. The intervener conceded in cross-examination that he told a relative he may abandon interest in the eldest child if the Court’s orders fail to provide him with the level of interaction with the child he wants. He said that such comments were made in the heat of the moment and were not a genuine reflection of his sentiment, which may be correct. However, to guard against the risk of the intervener’s loss of interest in the eldest child and the consequent harm for the child, the orders contain a self-executing provision which suspends the eldest child’s supervised visits with him if he misses two consecutive visits. The Family Consultant said in cross-examination, and I accept, the eldest child would experience grief and loss if introduced to the intervener as his biological father and the intervener then fails to maintain contact with him.

4. For consistency, the same self-executing provision is made in respect of the mother, which she accepted was warranted,[63] but it only applies in relation to the children’s visits with the mother for the first 18 months because the frequency of the supervised visits over the following 12 months may impose too onerous a financial burden upon the mother. Her diligent commitment to visits with the children over the next 18 months should be enough to prove her long-term commitment to them.

   [63] Exhibit M1, Order 9

5. There is no need for such a self-executing provision in respect of the applicant, since he will most probably occupy a common household with the paternal grandparents and the children.

6. The intervener sought regular telephone communication with the eldest child,[64] but the mother only sought intermittent written communication with the children.[65] The mother’s proposal was more sensible. It recognised the tension between the parties, which would be exacerbated by regular telephone calls to the paternal grandparents’ residence. The orders make provision for the mother to write to the children and the intervener to write to the eldest child periodically.

   [64] Exhibit INT1, Order 1(iv)

   [65] Exhibit M1, Orders 5-6

7. Because the time spent by the children with the applicant, mother, and intervener is restricted, the orders oblige the paternal grandparents to authorise the children’s school principals to provide to the other parties, at their individual expense, copies of the children’s school reports and photographs. That way, all parties can stay abreast of the children’s academic progress.

8. The orders also require the parties to keep one another informed of their respective contact details, which will enable their communication if and when needed.

9. The orders bind all parties to general embargos, forbidding the infliction of corporal punishment upon the children and the exposure of the children to denigration of any party.

10. The orders also require the paternal grandparents, who will hold parental responsibility for the children, to forthwith approach the NSW Registrar for Births, Deaths, and Marriages to ensure that the intervener’s paternity of the eldest child is properly recorded and published on an amended birth certificate for the eldest child.

11. The orders set out at the commencement of the reasons meet the children’s best interests.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 July 2015.

Associate: 

Date:  23 July 2015.