Derwent and Derwent and Anor
[2009] FMCAfam 863
•17 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
DERWENT & DERWENT & ANOR [2009] FMCAfam 863
FAMILY LAW – Parenting orders – sexual abuse or misconduct towards the grandchildren by the paternal grandfather – parental conflict – mother does not want children to spend time with paternal grandmother – time with father – time with paternal grandmother – mother and children residing in a refuge and unable to disclose residential address to father.
Family Law Act 1975, Part VII
Applicant: MR DERWENT
First Respondent: MS A. DERWENT
Second Respondent: MS M. DERWENT
File Number: SYC 8449 of 2007
Judgment of: Pascoe CFM
Hearing dates: 22 & 23 June; 8 & 31 July 2009
Date of Last Submission: 31 July 2009
Delivered at: Sydney
Delivered on: 17 August 2009 REPRESENTATION
Counsel for the Applicant: Ms Wearne
Solicitors for the Applicant: Legal Aid Commission of New South Wales
Counsel for the first Respondent: Self-represented (23 June 2009; 8 July 2009 and 31 July 2009)
Ms Falloon (22 June 2009)
Solicitors for the first Respondent: Self-represented (23 June 2009; 8 July 2009 and 31 July 2009)
Miedzinski Lawyers (22 June 2009)
Counsel for the second Respondent: Mr Greenaway
Solicitors for the second Respondent: Willis & Bowring
Counsel for the Independent Children’s Lawyer: Ms Boyle
Solicitors for the Independent Children’s Lawyer: Watts McCray THE COURT ORDERS BY CONSENT:
(1)Discharge all previous parenting orders.
(2)That Ms A. Derwent (‘the mother’) and Mr Derwent (‘the father’) share equally parental responsibility for the children, [X] born in 1999 and [Y] born in 2001 (“the children”).
(3)That the children live with the mother.
(4)That the children spend time with the father as follows:
During school terms:
(a)If the children are not spending time with the father pursuant to these orders, on each of the children’s and father’s birthdays, for a period of 2 hours as agreed between the parties and failing agreement:
a) on weekdays between 4pm until 6pm;
b) on weekend or school holiday days from 10am to 12 noon.
During school holidays
(b)For one half of all school holiday periods at the end of terms 1, 2 and 3 as agreed between the parties and failing agreement:
a) In 2010 and each alternate year thereafter, for the first half of the school holidays, commencing at 12 noon on the first Saturday until 12 noon the following Saturday; and
b) In 2009 and each alternate year thereafter, for the second half of the school holidays commencing 12 noon on the second Saturday until 12 noon on the following Saturday.
(c)For the long summer holidays:
a) In the 2009-2010 summer holidays, for two (2) ten day blocks:
A.from the conclusion of term 4 2009 until 12 noon on Monday 28 December 2009; and
B.from 12 noon on Friday 8 January 2010 until 12 noon on Monday 18 January 2010;
b) For the first half of the summer holidays in 2010-2011 and each alternate year thereafter; and
c) For the second half of the summer holidays in 2011-2012 and each alternate year thereafter.
(d)Notwithstanding any other order, for Christmas:
a) in 2009 and each alternate year thereafter from 2 pm on Christmas Day until 5pm Boxing Day.
b) in 2010, and each alternate year thereafter from 2pm on Christmas Eve until 2pm on Christmas Day.
(e)For such further and other periods as agreed in writing between the parties from time to time.
(5)That the father’s time with the children is suspended as follows:
(a)If the children are spending time with the father pursuant to these orders, on each of the children’s and mother’s birthdays, for a period of 2 hours as agreed between the parties and failing agreement:
a) on weekdays between 4pm until 6pm;
b) on weekend and school holiday days from 10am to 2 pm.
(b)Notwithstanding any other order, for Christmas:
a) in 2010 and each alternate year thereafter from 2 pm on Christmas Day until 5pm Boxing Day.
b) in 2009, and each alternate year thereafter from 2pm on Christmas Eve until 2pm on Christmas Day.
(6)That for the purposes of spending time with the children:
(a)the father will collect the children from, and return them to their school(s) where these orders specify that the children's time starts or concludes at school;
(7)Ms M. Derwent (‘the grandmother’) is allowed to spend time with the children:
(a)At school activities where extended family members are invited. This includes grandparents’ day, school concerts and other school activities. This does not extend to school activities where only parents and guardians or persons with parental responsibility are usually invited to attend, such as parent teacher evenings; and
(8)That all parties be restrained from bringing (or permitting any other person to bring) the children into contact with Mr D, the paternal grandfather.
(9)The children to communicate with the father by telephone:
(a)At any reasonable time the children or either of them express a wish for such communication; and
(b)the father be at liberty to telephone the children at all reasonable times and in any event not less than twice per week on non-contact Sundays and Thursday between 5.00 pm and 7.00 pm; and
(c)In order to facilitate Orders 9(a) and (b) above, the mother will ensure that the children's mobile telephone is charged, switched on, and available to the children at all reasonable times and that the children have privacy to communicate with the father.
(d)In order to facilitate orders 9(a) and (b) above, the father shall provide credit for the children’s telephone sufficient to facilitate the orders.
(10)That each party inform the other party of their intention to holiday and/or visit interstate with the children, including details of the children’s interstate accommodation no later than fourteen days prior to their intended departure.
(11)That each party shall ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to the child or children and including sufficient details to enable both parties to be consulted in respect to or fully advised regarding such illness or condition and any treatment recommended or provided to visit the child and or children if hospitalised.
(12)That each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the father, the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school, including but not limited to parent teacher interviews.
(13)That the mother, father and paternal grandmother shall do all things necessary to enrol in the Keeping Contact Programme offered by Unifam Sydney (telephone 9373 5500) and attend all consultations as may be reasonably required by that service and follow all reasonable directions of that service, including ensuring that the children attend if requested.
(14)That the mother, father and paternal grandmother share equally the costs of the Keeping Contact Programme.
(15)The Independent Children's Lawyer is authorised to provide to the co-ordinators of Keeping Contact copies of the reports prepared by Dr Todd Jacobson in these proceedings dated 23 June 2008 and 28 January 2009.
(16)That until otherwise ordered each party, MR DERWENT born in 1969 and MS A. DERWENT born in 1972 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children [X] born in 1999 and [Y] born in 2001 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders its removal.
(17)The parents and the paternal grandmother shall not:
(a)Speak to the children, or in the presence or within the hearing of the children, in a manner that is demeaning or derogatory or insulting to another party or a person with whom another party has a relationship;
(b)Interrogate the children about the activities or relationships of the other party;
(c)Discuss with the children or in the presence or within the hearing of the children any issues arising in these proceedings or allow the children to read any court documents.
(18)The mother shall arrange for the children to attend upon the Independent Children's Lawyer so that the Independent Children's Lawyer can explain to the children that these Orders have been made and the general effect of the Orders.
THE COURT ORDERS THAT:
(19)The children spend time with Mr Derwent (‘the father’) as follows:
During school terms:
(a)In week one:
a) From the conclusion of school on Tuesday until the commencement of school on Wednesday (or such other weekday as may be agreed); and
b) From the conclusion of school on Friday until the commencement of school on Monday; and
(b)In week two, from the conclusion of school on Tuesday until the commencement of school on Wednesday (or such other weekday as may be agreed).
(c)Notwithstanding any orders herein from 10.00 am on Father’s Day until the commencement of school on the Monday immediately following.
(20)That the father’s time with the children is suspended as follows:
(a)On Mother’s Day each year from 10.00 am until the commencement of school on Monday immediately following.
(21)That for the purposes of spending time with the children:
(a)Ms A. Derwent (‘the mother’) will deliver the children to the father's home, and collect them from his home, for all non-school changeovers.
(22)Ms M. Derwent (‘the grandmother’) is allowed to spend time with the children:
(a)Whenever the children spend time with the applicant father, at the discretion of the father; and
(b)At any other times as agreed by the applicant and respondent together in writing.
(23)Whilst the mother is residing at her current accommodation:
(a)The Independent Children’s Lawyer is to approach the mother’s accommodation providers within the next two (2) months and seek to negotiate amendments to the mother’s lease and/or seek that a new lease be drafted to authorise disclosure of the mother’s address (and landline telephone number if possible) to the father.
(b)To assist with Order 23(a), the Independent Children’s Lawyer is authorised to provide the mother’s accommodation providers with these Orders and the reasons for judgment in this matter and a copy of Exhibit ICL3 (‘Additional Order Sought by Independent Children’s Lawyer’).
(c)If the mother’s accommodation providers agree to authorise disclosure of the mother’s address to the father, the father is to provide an undertaking to the mother’s accommodation providers that he will keep confidential the mother’s residential address (and landline telephone number if applicable) whilst she is provided with housing by that service, and in particular, that he will not inform the paternal grandfather of the address.
(d)The Independent Children’s Lawyer’s obligations under Order 23(a) are discharged after two (2) months from the date of first contact with the accommodation providers pursuant to those orders.
(24)Each party inform the other of their:
(a)Current mobile numbers;
(b)Current landline telephone numbers;
(c)Ordinary residential address at which they accommodate the children when the children are living with or spending time with that parent; and
(d)Promptly advise one another of any changes to same, within 48 hours of such change.
(e)Orders 24(b) and (c) apply only when the mother leaves her current address or if her lease is amended in accordance with Order 23(a).
(25)The Independent Children’s Lawyer is authorised to provide a copy of the orders and reasons for decision to the Keeping Contact Programme.
THE COURT NOTES BY CONSENT THAT:
(1)The parties agree that should the paternal grandfather return to Australia that would not of itself constitute a change of circumstances sufficient to ground a variation to these orders.
IT IS NOTED that publication of this judgment under the pseudonym Derwent & Derwent & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYSYC 8449 of 2007
MR DERWENT Applicant
And
MS A. DERWENT First Respondent
MS M. DERWENT Second Respondent
REASONS FOR JUDGMENT
Introduction
1.These proceedings relate to parenting orders with respect to the children, [X] who is 10 years old, and [Y], who is 8 years old. They are children of the marriage between the applicant father, Mr Derwent, and the first respondent mother, Ms A. Derwent. The second respondent and intervenor, Ms M. Derwent, is the children’s paternal grandmother.
2.The father and mother met in Argentina in 1989 and soon after commenced a relationship. On 28 February 1998 the mother migrated from Argentina to Australia on a prospective spouse visa and commenced cohabitation with the applicant. They married in October 1998. [X] and [Y] were born in 1999 and 2001, respectively.
3.In or about May 2007 the mother travelled to Argentina for 12 days. The children were cared for by the applicant and his sister. Upon the mother’s return from Argentina, [X] disclosed to the mother that her paternal grandfather, Mr D (the intervenor’s husband and the applicant’s father), had on one occasion touched her in her ‘rude part’. Another incident was disclosed by [X] in November 2007 to the mother and in late December a disclosure was made to the mother that the grandfather had inappropriately touched [Y]. Additionally, interview reports with the Kogarah Joint Investigations Response Team of the Department of Community Services (DoCS) indicate that [X] “was unable to separate incidents clearly and said she has been touched by him since she was four or something” (see Exhibit A tendered 18 March 2008). The truth of these allegations is in dispute.
4.On 6 December 2007 the applicant and respondent separated when the respondent moved out of the matrimonial home with the children. On the same day, proceedings were commenced by the applicant for parenting orders.
5.After separation, the respondent mother had difficulty obtaining accommodation, moving at least four times until she moved into her current accommodation which is provided by a women’s and children’s refuge programme.
6.On 20 March 2008 interim parenting orders were made which included restraining the children from spending time with the paternal grandparents.
7.On 17 October 2008 orders were made to join the Intervenor as a party to the proceedings and consent orders were made in relation to the property of the marriage.
8.
This matter was listed for final hearing over two days commencing
22 June 2009with all parties legally represented. On the first day the parties successfully came to an agreement on a substantial number of issues raised in the application and the matter proceeded on the basis that many of the orders were agreed. On the second day, the respondent’s counsel sought leave to withdraw and the respondent proceeded with the trial self-represented and with the assistance of an interpreter. Submissions were heard on 8 July 2009 and further evidence adduced by the Independent Children’s Lawyer with respect to the mother’s place of residence was tendered on 31 July 2009.
Issues
9.The matters agreed to by all parties are contained in the Minutes of Orders proposed by the Father and marked as Exhibit A1 (see Annexure A of this judgment), and an agreement that the grandmother is allowed to attend school events where family members are invited (such as grandparents day but not limited to such). All issues contained therein were agreed to by the parties on the first day, except for the issues underlined in that document. The respondent mother confirmed both on the second day of hearing after her counsel had withdrawn, and on the day of submissions that she continued to proceed on the basis of the agreements made on the first day of hearing.
10.In submissions, the mother agreed to allow the father to communicate with the children by telephone as per order 9(b) of the father’s minutes of orders. She agreed to facilitate this by ensuring that the children’s mobile telephones were switched on, but sought that the father should pay for telephone credit. The father agreed to provide credit for the children’s telephone. The mother also agreed to provide her mobile number to the father.
11.The mother also raised in submissions that she wanted to amend the agreement in order 16 of the minutes of orders, to include three additional documents to be forwarded to the Keeping Contact Programme, a counselling programme at UNIFAM which the adult parties agreed to attend.
12.The remaining issues in dispute before me therefore are:
a)How time with the applicant father over weekends during school term should be structured;
b)How and where changeover should occur for all non-school changeovers;
c)Whether there should be orders that the children spend time with the paternal grandmother and if orders are to made, whether that time should be limited and/or supervised;
d)Whether the parties should inform the other of their residential address and current landline telephone numbers.
and
e)Whether further documents should be provided to the Keeping Contact Programme.
13.Although the Court is not bound by the proposals of the parties, I have set them out so as to clearly identify the issues.
14.The mother seeks for weekend time to be structured so that the children spend time with their father from Friday after school until Sunday evening. The father seeks that his weekend time with the children be extended until Monday before school.
15.The father seeks orders that for non-school changeovers the mother deliver the children to his home. The mother seeks for changeover to occur at a public place, such as provided in the current arrangements.
16.In relation to time with the paternal grandmother, the mother seeks that the grandmother be limited to spending time with the children for four to five hours each month and that the parties attend counselling with UNIFAM who should then make a determination on how much time the grandmother spend with the children. If time is allowed, the mother seeks a graduated re-introduction of time. The grandmother seeks, with the support of the father, unrestricted time with the children and that this occur when the children are spending time with the father pursuant to the orders.
17.The father seeks orders for the mother to provide him with contact details and the residential address of the children. The mother opposes those orders.
18.The Independent Children’s Lawyer’s proposal was in accordance with the father’s minutes of orders. She added however, that the father should sign a confidentiality agreement in relation to non-disclosure of the mother’s place of residence.
Evidence
19.At the hearing the applicant relied upon the following material:
a)His affidavit sworn on 30 April 2009;
20.The respondent relied upon the following material:
a)Her Affidavit of 26 May 2009;
b)Affidavit of Ms M sworn 21 May 2009;
c)Affidavit of Ms C sworn 21 May 2009;
21.The Intervenor relied upon the following material:
a)Her Affidavit of 17 April 2009
22.The family report writer attended the first day of hearing and was cross-examined. All the parties gave evidence on the second day and were cross-examined; this included the respondent in person cross-examining the applicant on the second day of hearing. The respondent mother gave evidence on the second day of hearing through a Spanish language interpreter. The grandmother gave evidence primarily in English but a Spanish language interpreter was sworn in and assisted when she required language assistance. The mother’s witnesses were not required for cross-examination and did not give evidence at the hearing.
23.Dr Jacobson, the family report writer expressed a concern in his first report that the father said that his relationship with the children was ‘broken severely’ as an attempt to promote his case by casting doubt on the mother’s ability to care for the children. Dr Jacobson was concerned as to the father’s credit but said that this was a matter for judicial determination.
24.The other evidence before me does not indicate any exaggeration. On all the evidence, I find that the father is a credible witness. There is evidence that there has been strain on the relationship between the father and [X] (for example the dispute over whether the father inappropriately took the child to the hairdresser’s) and I find that the evidence provided by the father to the family report writer reflected his distress about such disagreements.
Dr Jacobson family report writer
25.A family report was prepared on 23 June 2008 (‘first family report’) by Dr Todd Jacobson and an updated report was completed on 28 January 2009 (updated family report’) by same. For the first family report, he interviewed the parties and the children (each separately) and observed the children together interacting with the mother and the father separately. For the updated family report, he interviewed the parties and the children (each separately) and observed the children together interacting with each of the parties separately.
26.I have found the evidence of the family report writer consistent with the other evidence before me and accept his observations as to the nature of the relationship between the parties and the children. I give significant weight to his evidence.
27.At hearing the family report writer’s evidence was clear, namely, that it was important for [X]’s development that each party support and improve their relationships with each other. He indicated that the same applied to [Y]. I note that in his evidence there was a focus on the need for the children and the family to move forward from the issue of past abuse. This is highlighted by his evidence at hearing where he said that:
“She [[X]] needs to have the freedom to be able to unfold her own personality and develop relationships with people irrespective of this issue [the abuse]”.
Documents relating to the mother’s current accommodation
28.On 31 July 2009 the matter was re-listed before me on the basis that the Independent Children’s Lawyer had received correspondence from the mother’s accommodation provider. Three documents (Exhibits ICL4, ICL5, and ICL6) were tendered: two are items of correspondence between the mother’s accommodation provider and the Independent Children’s Lawyer, and the other is a newspaper article which, on the facts, appears to be about this matter. I accept these documents express the views of the programme managing the mother’s residence but, as they were not able to be tested, I make no findings as to the truth of the statements contained therein, particularly with respect to domestic violence issues between the applicant and respondent which were not raised in any proceedings before the Court either at interim or final hearing.
Legal principles
29.The legal principles which govern this case are set out in Part VII of the Family Law Act1975 (Cth) (‘the Act’). Most importantly, s.60CA provides that the best interests of the child are the paramount consideration. Also of importance is s.65C which recognises other significant persons, including a grandparent to apply for a parenting order.
30.In determining the best interests of the child, the Court must consider the primary considerations, which are set out in s.60CC(2) together with those matters (‘additional considerations’) set out in s.60CC(3). Also of relevance are s.60CC(4) and (4A) of the Act which I have considered whilst addressing the matters set out in s.60CC(3). I have also had regard to s.60CC(5) relating to consent orders because of the issues agreed to by the parties.
Application of the law to the facts
The Primary considerations
The benefit to the child of having a meaningful relationship with both of the child's parents
31.Both parents were involved in the care of the children during the marriage and after separation, and they are described as ‘interested and concerned parents’ by the family report writer. It is not contested that the benefit to the children of having a meaningful relationship with both parents is very significant and important.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sexual abuse
32.Both children informed their mother (and later their father) that their grandfather sexually abused them. The grandfather denied these allegations.
33.On 9 December 2007 the mother reported the incidents to the [S] Police station and on 27 May 2008 an AVO was issued against the grandfather in the protection of [X] for two years. A written undertaking was made with respect to [Y] in the same terms as [X]. The grandfather continues to deny the allegations. There is no evidence that any criminal charges are being pursued.
34.On or about 22 November 2007, the grandfather attended the matrimonial home and in the presence of [X] apologised to her and indicated that he would “go far away”. In February 2009, the grandfather travelled to Argentina. He has separated from the grandmother and the grandparents have informally distributed the property of their marriage. The applicant and intervenor have indicated at hearing that the grandfather has not evinced any intention to return to Australia. He is currently looking after his own mother.
35.I find that any danger to the children which may have been posed from the grandfather has been removed.
36.Although both the applicant father and grandmother keep in contact with the grandfather (including the grandmother travelling to Argentina earlier this year and seeing the grandfather), they have expressed both verbally and through their previous actions that they would never place the children in a position where there is any contact with the grandfather. The mother has from the birth of [X] indicated that she did not want the children spending time with the paternal grandfather unsupervised.
37.Both the mother and the Independent Children’s Lawyer at hearing sought to ascertain the father and grandmother’s view as to the truth of the allegations [X], in particular, had made. The father after initially hearing the disclosures indicated to the mother that it was probably an accident or misunderstanding but that he would speak to the grandfather. In the first family report, the father stated that he, “believed the children’s allegations but there was no indication of sexual abuse”. During cross-examination, the father gave evidence that he did not believe the grandfather ‘molested’ the children as this was not what the children said to him. He stated that he believed what the children said, namely, that [X] was “touched on the shoulder and on the leg”. The grandmother during cross-examination indicated that she believed [X].
38.The mother expressed doubt that the father can protect the children and says he did not believe the allegations. I understand that during an interview with the Kogarah Joint Investigations Response Team of DoCS on 5 February 2008 (see Exhibit A tendered on 18 March 2008) the father expressed the view that he initially believed [X] but then doubted her story because he thought the mother had placed those ideas into her head.
39.The grandmother indicated in the updated family report her view that something happened to [X] but [X] may have misconstrued the grandfather’s intentions. Although the family report writer was of the view that the grandmother had some doubt regarding the veracity of the assault, his findings were that in the circumstances it was ‘understandable’. Importantly, the grandmother demonstrated to the report writer that she was willing and able to protect [X].
40.I find that both the father and grandmother, whatever their doubts, are supportive of [X] and concerned for her welfare. I make no finding as to their understanding and interpretation of what happened. This is because regardless of the parties’ subjective views, what is crucial to the children’s best interest is that the parties have taken the matter very seriously and at all times responded appropriately.
41.The willingness and ability of the father and grandmother to protect the children is emphasised by their placing the interests of the children above their own personal views of the incident and above their relationship with the grandfather. This no doubt has been difficult in all the circumstances, including the strain on the grandmother from the dissolution of her marriage.
42.The father spoke to the grandfather immediately after he became aware of [X]’s disclosures on each occasion. On the second occasion, both grandparents were involved in the discussions and the grandmother recommended the children consult a children’s psychologist. The parents then made an appointment for [X] and the grandfather at Inter-late Family services.
43.The parties have all been supportive of on-going counselling for [X] and have not placed the children in contact with the grandfather.
44.I also consider the capacity of the parties to protect the children, especially if the grandfather were to return to Australia. At hearing the applicant indicated that since [X]’s birth, the mother has always been anxious about leaving the children alone in another man’s care. The applicant indicated that since 1999, he and the grandmother had agreed not to leave the children alone with the grandfather or in the care of other men. Since 2005 or 2006, the applicant’s sister knew of this agreement. The evidence seems to indicate that the applicant did not mention this agreement to his father until the respondent mother travelled overseas in 2007 when he told the grandfather that the children were not going to be left alone with him.
45.I find that all parties to the proceedings are aware of the needs of the children and are willing to protect them. They have responded to the subject of allegations very seriously. I am of the opinion that the parties will be able to protect the children from any contact with the grandfather if he were to return to Australia.
Psychological abuse
46.There is a concern that the father and grandmother have wanted to know more details regarding the allegations and have also pressured [X] to see her grandmother in early 2008. Tendered as Exhibits ICL1 and ICL2 are questions by the father and grandmother, respectively, which seek for the family report writer to question [X] on the allegations.
47.The family report writer indicated that the father was not aware that persistent questioning of [X] about the abuse might in itself be abusive.
48.I find that most of the questioning occurred initially and that, consistent with the family report writer’s findings, this is ‘understandable’ in the circumstances as the parties sought to understand what had happened and make an informed decision. It is not realistic to assume that the son and wife of an alleged abuser who presumably had never before had reason to suspect him of inappropriate behaviour would not seek details and presumably further explanation.
49.The family report writer at hearing indicated he was concerned the father might continue to question [X] in the future. Both the father and the grandmother however gave evidence that they do not question the children anymore and I accept this evidence.
50.Accordingly, I find that there has not been any questioning of the children amounting to abuse on the part of the father or the grandmother, nor that such abuse would occur in the future. I consider this issue further under the consideration in ss.60CC(3)(f) with special regard to the parties’ ability to care for the children’s emotional well-being.
Family violence
51.The mother has raised issues about emotional abuse and said the father has threatened to kill her. She indicated that on 6 December 2007 when they separated, they had an argument and she felt ‘threatened by him’. She indicated that later that day he was aggressive and wanted to see the children. However, the evidence before me is not sufficient to indicate there has been family violence to which the children have been exposed. The evidence in affidavits however, highlights parental conflict.
52.The programme managing the mother’s residence has assessed the applicant and intervenor as perpetrators of high levels of psychological abuse described as ‘controlling family violence’, but this evidence has not been tested for the purposes of these proceedings. There is no evidence as to how such conclusions were reached. Additionally, the mother has had the benefit of legal representation throughout these proceedings from at least March 2008 until the second day of hearing on 23 June 2009. The extent of the emotional abuse as contended by the mother is not supported by any credible evidence put before the Court.
53.The mother indicated during cross-examination that she felt there was ‘emotional abuse’ by the father and there was not enough time to discuss this with Dr Jacobson during the family report interviews. There is no other evidence or example provided of emotional abuse.
54.Consequently, I find there is no evidence of family violence from which the children need to be protected.
Additional considerations
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
55.There was some evidence that [X] does not like her grandmother, that in some instances she is ‘scared’ of her (as indicated to Ms L, social worker at the Sydney Children’s Hospital), and does not want to see her. [X] is worried her grandmother does not believe her regarding the abuse. She also indicated to the family report writer in the updated family report that she did not like a week about arrangement with her father but could not explain why.
56.The first family report indicated that [X] wanted less time with her father, whilst [Y] said the same was fine. In the second report [X] indicated that she wanted the arrangements to stay as they are.
57.I give little weight to the children’s wishes in view of their ages and the influence of the mother reinforcing to the children a negative view of the father and his family (for example [X] told the family report writer that she thought her mum thought her grandmother should have protected her differently and that her mother tells her a little of what happens in Court. Also see examples at paragraph [67] below).
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
58.Both parents are loving towards their children and cared for the children during the marriage. Since separation, the children have lived with the mother and she has been their primary caregiver, but both parents have been involved in caring for the children including after separation.
59.The children have indicated that they miss their father when they do not spend time with him. In the updated family report, the respondent mother indicated that the children ‘love their father’ but that [X] is upset with him due to the issues regarding the grandfather. The respondent mother’s affidavit indicates that the father does not believe [X] and treats her differently to [Y] and that this causes [X] some distress. There has been some strain on the relationship between the father and [X], with the father and the paternal family pressuring the children to communicate with their grandmother, although the father denies placing any pressure on the children. Additionally, the mother’s affidavit indicates that [X] may feel responsible for the dissolution of the marriage and her family.
60.The grandmother is also [X]’s godmother and has assisted in the care of the children since they were born. She has not seen the children, apart from the family report interviews, since 20 November 2007. The updated family report indicated that the children seemed to enjoy interacting with their grandmother. Additionally the updated report says:
“[A] relationship was obvious between the threesome and suggested a pre-existing foundation vis-à-vis their relationship. Furthermore, a foundation exists upon which to further build a relationship between the children and their paternal grandmother”.
In light of grandmother’s role in the children’s lives before separation and, the observation of the family report writer especially as to the strength of the relationship after a long absence, I am of the view that there is a good and enduring relationship between the children and their paternal grandmother which it is in their best interests to maintain.
Dr Jacobson made it clear in his evidence that an on-going normalised relationship between the children and that extended family is beneficial and that time with the grandmother was crucial to their on-going psychological development.61.I give no weight to the evidence of Ms M or Ms C provided in the affidavits. The intervenor denied speaking those words and there is no credible evidence before me that the intervenor takes a negative view of the children as implied in those affidavits. In fact, her evidence, which I accept, was quite to the contrary.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
62.It is evident that there is continuing conflict between the mother and the father. Evidence before me includes: their interaction at the hearing; their inability to decide on a changeover venue; the father at one point making arrangements to see the children by communicating with [X] rather than the mother; the father in April 2009 coming late to pick up the children resulting in the mother failing to deliver the children to the father and then leaving with the children for Port Macquarie for a holiday without the father’s consent; the father cutting [X]’s hair without the mother’s consent; and the mother changing the children’s schools in 2008 without consulting the father or even disclosing this decision to him. The issues relating to family violence discussed above are also indicative of continuing conflict.
63.The parties in the first family report indicate that the level of conflict between them was 5 out 10 and 8 and a half out of 10 (with 10 being extreme), respectively for the father and the mother.
64.Both parties have indicated that the other party has been obstructing telephone calls between the children and the other parent, for example through not picking up the telephone. The father indicates he has not spoken to the children on the telephone since earlier this year.
65.The mother during cross-examination stated that the father has been denigrating her in front of others after separation. On the other hand, the mother arranged no face-to-face contact between the children and the father after separation until court orders were made. Although she allowed the father to spend Christmas with the children, this was abandoned as a result of the mother hearing (unsubstantiated) rumours. I note that the rumours appeared to come from a person the mother respected, although there is no evidence that this person knew the rumours were truthful or based on fact.
66.The capacity of the parties to facilitate any relationship is affected by their views on the disclosures by [X]. The mother’s explanation to the children of why the father could not have the children’s address was that,“[the] father didn’t believe what she was saying regarding her grandfather and in that place they don’t - they don’t accept people who don’t protect children”. The father at one point believed ‘the mother is crazy’, that the mother has been putting these allegations into the [X]’s mind and that the mother’s previous history has affected her judgment in this matter.
67.In both family reports, it came across clearly that the children’s views of the paternal family are distorted by the conflict between the parents. For example, [X] told the family report writer in the first report that her grandmother is “not a good person. She tells lies to my dad about my mum”. She clarified she over heard her mother telling her father this. Even [Y] stated that he thought his grandmother was ‘crazy’ (in the first report) because this was what his mother had said. This denigrating of the father and the grandmother by the mother is clearly not in the children’s best interests.
68.I note however that the parties have been able, with a few difficulties, to comply with court orders.
69.Amongst other things, the mother has agreed to the father’s proposed minutes of orders that he should spend time with them; has offered him time with the children in lieu of his missing time with them after travelling overseas; has invited him to the children’s social functions; and has to some extent, updated him on the children’s life (e.g. sending school reports to his home). The mother will not disclose her residential address to him but she explains that this is because of the nature of her residence. She has indicated that she does inform the father of the children’s progress at school.
70.I am very concerned that the mother seems obsessed with the events relating to the paternal grandfather especially as they involve [X]. In fact I was struck by the focus on [X] in this regard and the seeming lack of similar concern in relation to [Y]. I note also the mother’s constant allegations of violence on the part of the husband and his family, none of which were substantiated during the hearing. This must be of great concern given the very clear evidence of Dr Jacobson that the psychological health of the children is very dependent on a return to normal family relationships and cessation of the perpetuation of a climate of fear and guilt. I have had regard to Dr Jacobson’s concerns that:
“The overly protective nature of Ms. Derwent’s approach to interacting with the children is germane to the current situation not only in terms of her concerns about the children’s spending time with the father, but also in terms of the time the children spend with their grandmother”.
The mother must be able to accept that a return to normal family relationships is in the best interests of the children and move on if she is not to cause further psychological harm
71.Despite the above, I am of the view that the parents have the ability to effectively facilitate a relationship between the children and the other parent in circumstances where both parents have expressed a willingness to do so, have complied with court orders, and are willing to undertake counselling.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
72.The parties have agreed that the children will live with the mother who has been their primary carer. The children have been spending time with their father, including overnight time, and this been assessed by the family report writer as important in facilitating the relationship between the children and the father. There is no evidence that the time away from the mother has detrimentally affected the children.
73.The grandmother seeks that any time she spends with the children would be time they spend with their father. Both the grandmother and father have indicated that the grandmother has assisted the father in caring for the children in the past (e.g. cooking), and that the grandmother would not always spend time with the children when they are spending time with the father. I find that the orders sought by the intervenor do not diminish the time spent with the father or mother. Further, Dr Jacobson in his evidence made clear the beneficial effects for the children of a regular interaction with the grandmother and other members of the father’s extended family.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
74.Although the mother is receiving government financial support, and is the children’s primary carer, the practical difficulty and expense of spending time with and communicating with the father was not raised as an issue.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
Accommodation and financial needs
75.The father’s accommodation does not pose a problem. He lives in a two bedroom apartment in a suburb near the children’s school. He is currently a student undertaking further studies and receives New Start Allowance.
76.The mother does not work and is receiving government financial support. I note she has outlined some expenses in her affidavit and implies that she wants the father to pay child support. However, the father at hearing indicated that he wants to pay support to the mother but she will not allow him to do so. There has been no evidence before me that the mother, with the assistance of the father, is currently unable to meet the children’s needs such as speech therapy and extra-curricular activities. Although the mother is concerned that her finances would be affected by any decision to give more time to the father to spend with the children, there is no evidence that any reduction (especially one night per fortnight) would impact on the mother’s capacity to care for the children.
77.The grandmother indicates that although she plans to buy her own apartment, she does not currently have an apartment of her own and lives for indefinite periods of time with each of her three children. Her affidavit indicates she is currently living with her youngest son in the same apartment block as the father and plans to live for an indefinite period of time with her daughter who resides near Wollongong.
78.I note that if orders are made allowing the grandmother to spend time with the children then this may occur when the grandmother is residing with the applicant. I am of the view that this would not have any effect on the children’s relationship with her or their father nor that it would affect her role as a grandmother. In fact it would seem entirely normal in that grandparents do stay with their children and should be to the benefit of the (grand)children.
79.In the event that for any reason it is not appropriate or convenient for the grandmother to see the children at a particularly time, the grandmother has indicated that her other son lives in the same apartment block as the applicant and that she has a daughter, both of whom she has indicated can accommodate her.
80.
One major practical concern is the mother’s accommodation. The letter relating to the contract, tendered as Exhibit A2, indicates there are restrictions relating to her residential address. However, I find that this does not affect her capacity to provide for the children’s needs, although it does limit the father. Another concern is that if I were to make orders for the mother to disclose her address to the father there is a possibility of eviction. A letter from Ms L of the Sydney Children’s Hospital Randwick dated 12 February 2008 (Exhibit A tendered on
7 March 2008) indicates that as of that date they have moved across at 4 residences since December 2007. The uncertainty as to the mother’s accommodation is a consideration I give some weight to in making orders especially as to whether the mother should disclose her address to the father. This constant moving and the mother’s fear, whether soundly based or not, is of concern because of its potential effect on the children who need to establish a normal routine.
The children’s emotional and psychological needs
81.The child [Y] at about age two was diagnosed with autism and delayed speech development. The child was attending a special needs teacher at [S] public school and currently attends speech therapy with Mr M.
82.Since December 2007 [X] has been undergoing counselling at different organisations, such as by the Child Protection Unit at Prince of Wales Children’s Hospital and a private counsellor. There is a concern that [X] feels guilt over the abuse and the disclosures, especially subsequent events such as her parent’s separation.
83.All the parties support counselling for [X] and there is no evidence that the parties are not supportive of [Y]’s needs, although I was concerned that much more emphasis seemed to be placed on [X]. I have not ordered additional counselling for the children as it appears from the evidence that the parties are mindful of these needs and it is important that there is flexibility around counselling arrangements so that the children can move on with their lives. I note that the mother attends parenting workshops run by her accommodation provider.
Parties’ capacity to provide for the children’s emotional needs
84.The evidence of Dr Jacobson makes it clear that it is in the children’s best interests for the parties to move forward from the issue of abuse and focus on the children’s development in the future. Therefore, the capacity of all the parties to assist in this is extremely important.
85.Although keeping the above in mind, I do not limit my discussion to the parties’ ability to deal with the emotional effects of abuse on the children, but their ability to care for the children’s emotional needs as a whole.
86.During cross-examination, the family report writer agreed with the Independent Children’s Lawyer that “both parents have a degree of insensitivity towards the difficult position [X] is placed in”. In the first family report (at [42], [X] indicated that she wanted less time with her father, with one reason being, “Because if I have more time with my dad, he’ll be telling me to have sleep overs there [at her cousins’ house]”. This was difficult for [X] because she said that, “My mum says she doesn’t want any sleep overs with my cousins”.
87.The mother
88.In her affidavit at [26] the mother indicated that, “It is my responsibility as a mother to believe my daughter, and I believer her, because as you know I went through something similar when I was little…” The father’s affidavit (at [16]) states that, “In 1990 Ms A. Derwent said to me ‘I was abused by my own grandfather at the age of 8 years and he was from [P] like your father’.” The father indicates that when [X] was born, the mother had said she was worried that the grandfather would molest the child. At hearing he indicated that he told his mother about this and arranged so that when the parties visited the grandparents, the children were always in sight for the mother’s peace of mind.
89.The first family report stated that [X] said her mother does not want them to sleep at their ‘cousins’ (good friends of the applicant) because, “Some crazy person might do something bad to me”. Although the mother may not have used those words, this statement is a reflection of what [X] has internalised as her mother’s view. The family report writer indicated that the mother was an ‘overly protective parent’ and that [X] frequently used the term ‘protection’ which was unusual for a child her age.
90.I also note that the first incident with the grandfather occurred when the mother was absent, and that her trip to Argentina in 2007 was, in her words, “the first time since the birth of my children that we had been separated for any length of time”.
91.The mother is very loving towards [X] and believes that as a good parent she must protect her child from all harm. However, it came across very strongly at hearing that the Mother’s experience as a child has had a deep and profound impact on her and I believe has greatly affected her attitude to the incident involving [X]. In particular, it has affected her capacity to move on and allow [X] to move on (also see para [70] above).
92.The family report writer in cross-examination agreed with the Independent Children’s Lawyer that if there were an improvement in the relationship of the adults in the proceedings then there would be an improvement in [X]’s ability to relate normally to her grandmother. The mother’s evidence was that she believes the grandmother to be denigrating the children and the respondent in front of other people. Ms Wearne for the father stated that the mother was unable to distinguish between adult issues and children’s needs as illustrated by the fact that the mother unilaterally terminated the father’s time with the children at Christmas due to rumours. I accept that the mother’s capacity to care for the child has been affected by her inability to distinguish between the children’s needs and the issues between the adults and by her inability to move on from her own abuse.
93.On the other hand, the mother agreed to the grandmother attending school activities as she thought: “it’s positive and a good introduction so they can start to have a relationship with their grandmother”. I find that that whilst there is likely to be some difficulty in the mother facilitating a relationship between the children and the grandmother, the mother does believe it is important and is likely to make some effort in this regard.
94.As indicated previously (at para [70]) the mother’s inability to move on, her comments to the children, which cause them to feel less secure and her denigration of the father and grandmother are of grave concern to me because of the on-going effect on the children’s psychological health. On the other hand, I accept that the mother is in a very difficult position. She clearly feels very vulnerable and appears to be without extended family or other support which would give her security and assist her to move on. This is an important factor in considering the issues in relation to her current accommodation.
95.The father
96.I discussed under consideration ss.60CC(2)(b) (the need to protect the children from physical or psychological harm) the father’s interpretation of the events involving [X] and the paternal grandfather and his questioning of [X]. The father initially questioned [X] on the details of the allegations and he evinced a persistent need to find this information. The letter by Ms L of the Sydney Children’s Hospital dated 7 July 2008 (annexed to the mother’s affidavit) indicates the father “is not in a position where he is able to identify and acknowledge his daughter’s distress. [X] spoke about her father repeatedly questioning why she doesn’t want to see her grandmother…”. The family report writer was also concerned the father would continue to seek answers about the abuse. The family report writer was concerned that not being believed would erode trust between an adult and child relationship.
97.The questioning occurred more than 12 months ago. The father has indicated that he no longer questions [X] and I accept his evidence. I am not concerned that the father wanted the children to see the paternal grandmother because there were no allegations against her. She was clearly deeply hurt and missed her grandchildren very much.
98.I am of the view that many of the behaviours by the parties were a reaction to the shock of the disclosure, and have changed over time. As I stated earlier (at [48]), I accept the family report writer’s evidence that this was ‘understandable’ in the circumstances. The father gave evidence that he takes the allegations very seriously and his actions, including ensuring that the children did not come into contact with the grandfather, demonstrate that this is so.
99.I am not of the view that the father’s current subjective interpretations of the incidents with the grandfather affect his capacity to generally care for the children’s emotional needs.
100.During cross-examination the father described [X] as “just like a mother, [X]” and demonstrating an understanding that [X] may feel responsible for her brother and the changes that have occurred in their lives. The father understands that the children should not be pressured to see their grandmother and did not envisage the grandmother always being there when the children spending were spending time with him.
101.Evidence was also provided that [X]’s hair was cut by the father in August 2008 without the mother’s consent. The mother indicates that [X] was distressed, as it was too short. The father insisted at hearing that it was just a trim to remove split ends and was not too short. Photographs were tendered as Exhibit A3 which show the child’s hair falls below her shoulders. However, ‘short’ and ‘long’ are subjective. Regardless of the actual nature of the haircut, the father does not appear to understand that the haircut has caused distress to the child and adversely affected the communication between him and the child’s mother. The father believes that these actions are what “a father, like a parent would do”. This may indicate some insensitivity but I do not believe it affects the father’s capacity to provide for the children’s emotional needs.
102.The grandmother
103.The grandmother has indicated that the allegations and proceedings have placed emotional strain on the family and resulted in the breakdown of her marriage of 45 years, having met her husband when she was 14. In her affidavit at [10] she says she feels that:
“I have been placed in the situation where I have had to choose between my grandchildren and my husband”.
The grandmother indicates that although she is still in communication with her husband she is of the view that the marriage has irreconcilably broken down.
104.Although there were concerns the grandmother’s questioning of [X] on the disclosures and an allegation by [Y] that his grandmother smacked him when he told her of the allegations, on all the evidence the grandmother has responsibly dealt with the matter of abuse, has taken the allegations seriously and responded in the children’s best interests.
105.I found the grandmother to be entirely truthful, to be motivated by the best interests of the children and having acted at all times in their best interests despite the serious consequences to her marriage. She has been placed in an impossible situation but is clearly devoted to her grandchildren and, as is apparent from Dr Jacobson’s report, has a solid relationship with them which has endured.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
106.[Y] has special needs. [X] has received counselling. During cross-examination the respondent agreed that parental responsibility included decisions relating to religious and educational needs and medical treatment.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
107.I note that in the affidavits and evidence at hearing, both parties sought to discredit the attitude of the other parent towards parenthood. For example, the mother alleges the father has failed to take [X] to piano lessons or to take [Y] to his soccer games; or declined to attend activities such as [X]’s gymnastics or social events including birthdays. The father denies that it was he who cancelled piano lessons or that he had ever been invited to various outings including birthdays.
108.Other evidence indicated that the father has been involved in the children’s lives including taking the children to the Scouts on Monday. He has a piano at his house so that [X] can play it in lieu of attending piano lessons. The mother’s evidence indicates that she takes the children to various activities such as art lessons and the Scouts.
109.Both parties have substantially complied with orders and at hearing the mother did not indicate that the father would not comply with orders. The first family report indicates that the mother has suggested the father breached specific orders by permitting the children to communicate with the grandmother through video messages. The father denied this at hearing. I note that order (5) of Orders made on 20 March 2008 state:
The father is restrained by himself from bringing (or permitting any other person to bring) the children into contact with his parents, the paternal grandparents.
There is no evidence to indicate that the father would breach any future orders and beyond the mother’s statement to the family report writer there is no evidence he has done so in the past.
110.Although the mother supports the children as a sole parent, the father previously paid child support. Although he has not paid since earlier this year, the father at hearing indicated that this is because the Child Support Agency would not accept his contributions because the contributions were currently in credit and that the mother has withdrawn her request to receive payment through the agency. He indicated however that he does pay for such things as medicine for the children.
111.I find that both parents demonstrate love for their children, and that their actions have been motivated by concern for the children. For example, the father at hearing indicated he took [X] for a haircut because he believed this was necessary and that he was being a good father. Both parents have responded to the disclosure by the children regarding the grandfather and supported counselling.
(j) any family violence involving the child or a member of the child's family;
112.I have dealt with this issue above.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
113.I have dealt with this issue above.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
114.I am of the opinion that the Orders I have made provide a stable and workable regime for the children taking into account all of the evidence and are least likely to lead to further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
115.Other facts and circumstances, especially in relation to the grandmother, are considered below in Discussion of the Issues.
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
116.Especially in light of the direction in ss.60CC(4) to consider, amongst other things, the parents’ ability to facilitate the other party in long-term decision making about the children, I note that the mother has changed the children’s schools without consulting the father and importantly, did not disclose this to him. Additionally, I have noted earlier the inability of the parents to communicate with each other. The agreed orders seek equal shared parental responsibility, and on the evidence before me, despite the past difficulties in communication, I am of the view that equal shared parenting responsibility would be in the best interest of the children. This would reinforce to the children that both parents, who have played and continue to play an important part in their lives, will do so in the future. I note that the parties have on previous occasions been able to make decisions in relation to the children.
117.I commend the parties for reaching agreement on the issue of contact by mobile telephone. The father should be able to telephone his children at appropriate times as this will assist in facilitating a meaningful relationship between the father and children and is consistent with a normal on-going pattern of contact.
118.I am of the opinion that the orders as agreed to by the parties are appropriate and in the best interests of the children.
Discussion of the issues
119.In cross-examination, the mother indicated that she agreed to the grandmother attending school events even in the mother’s absence because:
“I want a better future for the children with the whole family”
The parties have agreed on many of the major issues. Furthermore, I note that many of the father’s orders appear to be agreed by the mother in principle but she does not want them made at this point in time. For example, the mother’s opinion on school grandparent days indicates she believes there should be a relationship between the children and grandmother, but she believes such a relationship should resume gradually. She also indicated that she would not mind disclosing her location to the father (if she resided in other private accommodation) or that changeover occurs at the father’s place – but all of this should occur in the future once things are better between the mother and father.
120.What is apparent is that the parties care for the children and take their relationship with the children seriously – importantly they agree in principle to provide the children with the benefit of a relationship with the other parties in this matter. Disagreement, in essence relates to how this is to be achieved.
Time with the father
121.The updated family report indicates that the current arrangements should stay the same as they, “appear to have been successful in developing and maintaining a relationship not only between the children and their father, but also between the children and
Ms. Derwent [the respondent]”. The consent orders generally reflect the current arrangements except that they provide the children with an additional night each fortnight with their father (on Sunday nights). I accept the consent orders as made by the parties. This is because I accept the family report writer’s findings that the current arrangements are successful for maintaining relationships but I also find the children would benefit from spending more time with their father and paternal family especially in a situation were the family report writer has indicated that the children need to experience time with the ‘denigrated party’. I am of the opinion the orders I have made reflect a combination of these two findings.122.Additionally, these arrangements would increase the number of changeovers at school and therefore reduce interaction between the parents, in circumstances of high parental conflict.
123.The mother contends that she would have financial problems if the father’s time is extended to include Sunday overnight as she will lose some child support from the father. She believes that 6.00pm is an appropriate time to return the children as they will have time to prepare for school. Given that the mother has refused to accept support from the father and the relatively minor additional time, I do not accept this argument.
124.The Independent Children’s Lawyer, indicated that the father has been collecting the children from school and is able to speak to the teachers when he is there. There has been no dispute regarding parental responsibility nor has schooling been a concern. Ms Boyle highlighted that what is critical is that no conflict between the parents should be observed by the children and this is more important than any interruption to the children’s routine caused by a school-to-school arrangement.
Time with the grandmother
125.I am of the view that the court has sufficient evidence to make a determination on this issue and no report by UNIFAM, as proposed by the mother, is appropriate or necessary.
126.There is already a pre-existing relationship between the children and the grandmother which was noted by Dr Jacobson. He agreed that there was a benefit to both children in an ongoing relationship with their grandmother in a normal and unstructured way. In particular, he proffered that:
“[T]he best way of mitigating the effects of a parent on a child is for the child to have actual experience with the parent who has been either denigrated to whatever..”
This was applicable to not only a parent, but also to the grandmother.
127.I found Ms M. Derwent senior to be a credible witness and I accept her evidence. I think she is a devoted grandmother and I find nothing to criticise in any aspect of her interaction with her grandchildren. In fact I find she has always behaved in their best interests even at considerable personal cost.
128.Subject to the father’s discretion, the grandmother is to be provided unrestricted access to the children when they spend time with their father. In other words, she is to be permitted be a normal grandparent.
129.I have made orders that her time with the children is to be at the discretion of the father as was suggested by the father’s counsel. This is not to restrict her time but rather to reflect the role of a grandparent in that that not all time the children spend with their father will be with the grandmother. Additionally, this order is made to provide certainty if there is any disagreement between the father and grandmother. The grandmother is not obligated or compelled to spend time with the children, but I have no doubt she will wish to do so.
130.The mother seeks that no orders be made providing for the grandmother to spend time with the children, and that in the event orders are made, the time the grandmother spend with the children be supervised. If time is granted and it is to be supervised, I accept that it is likely the children will ask questions as to why the time needs to be supervised. The family report writer indicated at hearing that [X] may not be able to form a relationship to the best extent possible with her grandmother if there are restrictions placed on her time with her grandmother. Dr Jacobson indicated that, “it would be therapeutic for her to have a constructive relationship with somebody who is a safe person” and that she should “start to trust in a safe way”. Importantly, he said with regards to restrictions on time: “I just think it gives out a message that there’s something wrong when there may not be anything wrong”. I am of the view that restricting time as the mother seeks would not be in the best interests of the children as this would only exacerbate the tensions between the children, the father, and the grandmother, and provide support for a misconstrued view that the grandmother is unsafe.
131.I place no weight on the allegations that the grandmother wanted to kidnap the children or held onto their travel documents or that she has denigrated the children or the respondent to others in her community in the manner alleged. There is no credible evidence to substantiate such allegations. I understand that the family may be the subject of speculation and rumour in the South American community and in the workplace. The mother does herself no credit by listening to such rumours and acting upon them to the detriment of her family.
132.The children spent time with their grandmother prior to the events of 2007 and the grandmother cared for them when their parents were absent. I accept that this was her ‘normal’ role. It is important for the children to understand that they are safe with their paternal family. I am of the view that spending time with the grandmother and facilitating her role as a normal grandparent will be in their best interests.
133.For those reasons also, I do not think a graduated re-introduction of time is necessary.
Changeover during non-school periods
134.During non-school days, changeover is currently at McDonalds at [M]. The father indicates this is not a pleasant place to exchange the children, and the area is deserted at 6.00 pm on Sundays when changeover takes place and that the children feel ‘distress’. McDonalds is not open late at night and the parties had a changeover at a Kentucky Friend Chicken restaurant as an alternative.
135.The mother does not want to deliver the children to the father’s home. She stated in submissions that she feels unsafe going to his residence as some of his relatives also live in the same block of units. I take this to refer to the paternal grandmother and the father’s brother.
136.Dr Jacobson in cross-examination indicated that he believes that a school to school arrangement (i.e. from school Friday to Monday morning as opposed to a school to Sunday evening arrangement) to be preferable as this would minimise conflict. He also confirmed there would be no problems with that arrangement with regards to [Y]’s autism.
137.I find that it is in the best interests of the children for changeovers to occur at the school. This is due to the incapacity of the parents to communicate properly. In winter, the children will not be taken to a place that is the very least described as ‘not congenial’.
138.
I note that the father’s counsel suggested that, “the mother delivering [X] and [Y] to the father’s home sends a message, albeit a non-verbal one, of support of that relationship to the children?” to which
Dr Jacobson agreed.
139.The respondent indicated that she does agree sending the children to the father’s home would send a positive message of cooperation and “that would be ideal and I expect that to happen in the future”. However, she believes that the family needs to undergo therapy first and would prefer a public place.
140.The Independent Children’s Lawyer indicated that changeover at one of the parent’s homes would be “making things as normal as possible”. Additionally, it reinforces to the children that the father is not a perpetrator of the abuse. I accept this submission and am of the view that the mother needs to show her support for the father in front of the children. I understand that this maybe difficult for her as she said she felt ‘unsafe’ attending at his apartment because of the extended family. However, there has been no credible evidence of abuse between the parents and I am of the view that changeovers at the father’s home will be in the best interests of the children. I will make orders that the mother is to deliver the children to the father’s home and to collect them from the father’s home for all non-school changeovers.
Residential address and landline number
141.The father should be allowed to know where the children are living, especially given there has been no proof of domestic violence (see discussion at [51] – [54] above). The parties have agreed that the parents should have equal shared parental responsibility and it would be of assistance for the father to exercise that responsibility knowing where the children are residing. This is especially important in times of emergency for the father to contact his children and know where they are. Additionally, the father should be able to contact the mother regarding the children, especially when he has them for longer periods such as holidays.
142.It is also important that the children do not fall into a misapprehension if they are not allowed to reveal their residential address to their father, that somehow their father, and indirectly their grandmother, is unsafe. This is particularly important where the mother’s explanation to [X] as to why she couldn’t tell the father their address, was:
“Because – the only thing I said, because her father didn’t believe what she was saying regarding her grandfather and in that place they don’t – they don’t accept people who don’t protect children…Not with the exact words, simpler words perhaps”.
I am satisfied that the children need to understand that they can be safe with their father and grandmother.
143.Tendered into evidence as Exhibit A2, and only available for inspection by the legal representatives and the respondent mother, is a letter between the respondent and her landlord regarding the mother’s reasons for not disclosing her address to the father. The mother indicated that she resides in a refuge and the document indicates that she is not to reveal her address to ‘perpetrators’. The mother indicated at hearing that the co-ordinators of the refuge consider both the applicant and the grandmother to be ‘perpetrators’ for the purpose of this residential lease. This was supported by Exhibit ICL4 as the mother’s accommodation providers assessed the applicant and his extended family as perpetrators of ‘controlling family violence’ upon the mother.
144.Exhibit ICL6 is an email from the coordinators of the mother’s accommodation to the Independent Children’s lawyer, and it states:
“Regarding the possible court decision that Ms. Derwent’s residential address be revealed to the children’s father and/or grandparents, do know that it is our agency’s intention that if this were to occur, Ms. Derwent and the children will no longer be able to reside at the refuge…Ms A. Derwent will be informed that on the day that she is required by the court to reveal the address to any designated perpetrators of controlling family violence, she will be in breach of her contract and for the safety of high risk residents our agency will have no option but to terminate her residency. Our agency would move Ms. Derwent and the children into temporary crisis accommodation on the day that the address is disclosed”
145.Counsel for the father has suggested that the mother could ask for permission so that the father could sign a confidentiality agreement with the accommodation providers. The mother said she had approached the coordinators of the accommodation ‘several times’ to ask if the father could sign a confidentiality agreement regarding the address but that because of the contract she could not reveal it to him.
146.The mother submitted that she is unable to release herself from the residency and that it is up to the programme co-ordinators of her lease to assess whether she and her children would be safe living in the wider community. She indicated that her lease is reviewed at three monthly intervals but she is otherwise able to stay in her accommodation indefinitely.
147.For the purposes of emergencies and for the children to be able to move on with their lives, including not having to keep secrets from their father, it is in the best interest of the children for the father to know the whereabouts of the children. I make orders that where the mother is not residing at her current address that the parents are to notify each other of their residential addresses and landline telephone numbers.
148.With respect to the mother’s current accommodation, I understand the difficulty the orders sought by the father causes for the mother in and I accept the evidence that the refuge will evict the mother if she discloses the address. I am also mindful of the fact that the refuge provides a most valuable service to victims of violence and abuse and I would not want to make any orders which make this important task more difficult or could place any of the other residents at risk.
149.I make orders that the Independent Children’s Lawyer is to negotiate with the co-ordinators of the refuge to amend the mother’s lease or to seek that a new lease be drafted to authorise disclosure of the mother’s address to the father. To assist these orders, the Independent Children’s Lawyer is authorised to provide the mother’s accommodation providers with an unsanitised version of the judgment in this matter and Exhibit ICL3 (‘Additional Order sought by ICL’). On the facts before me, there is no evidence of family violence or emotional abuse as alleged by the mother. It is therefore important that the father and grandmother are not considered as ‘perpetrators’ as this will continue to place the children in a state of fear of their paternal family.
150.I note that the mother said she has approached her accommodation providers previously regarding this issue and there is a possibility that no amendments can be made to the lease or that a new lease cannot be drafted to include disclosure of the address to the father. I note the difficulty the mother has had in the past in obtaining accommodation. If she is evicted without other accommodation available to her, this will cause further disruption to the children’s lives and may cause difficulty with the contact regime. I am of the view that this would not be in the best interests of the children. Stability for these children is critical. In any event, the respondent told the family report writer at the interview on 20 June 2008 that she intended to remain at her current address for 18 months and then move to a different address but within the same general area. This would mean the mother and children would most likely be moving from her current accommodation by the end of the year. I do not propose to make any orders which would disrupt the mother’s current living arrangements.
Provision of additional documents to UNIFAM
151.This was opposed by the Independent Children’s Lawyer. I accept that there is no need to send these documents to them. However, I do think that an unsanitised copy of the judgment should be provided to them to assist with an understanding of the family circumstance as a whole.
Conclusion
152.The parties can and should move on with their lives as soon as possible. There is some conflict between the parties but I do not find this conflict unmanageable. They have managed for over 12 months to comply with orders and the strength of relationship between the children and each of the parties have continued to be maintained.
153.I emphasise that these children should be leading as normal lives as is possible in all the circumstances. I am concerned that [X] receive proper support and be allowed to move on, without feeling guilty about the break-up of her family, and with normal relationships with her extended paternal family who love her. It is very important that both children are allowed to develop normally with a range of activities. Within the constraints of [Y]’s autism, I encourage the parties to take the children to counselling.
154.Finally, moving forward it is important to emphasise that whatever has happened it should not be allowed to shape [X] (and [Y]’s) view of the world.
155.I accept the orders on the agreed issues by the parties. As to the remaining issues, I make Orders as discussed in this judgment.
156.I am satisfied on the basis of all the evidence that the Orders I have made are in the best interests of the children.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate: TH Nguyen
Date: 17 August 2009
Annexure A
FAMILY LAW ACT 1975
MINUTES OF ORDERS PROPOSED BY THE FATHER
FEDERAL MAGISTRATES COURT OF AUSTRALIA
AT SYDNEY File No. SYC8449/2007
BETWEEN
MR DERWENT
(Applicant)
AND
MS A. DERWENT
(Respondent)
AND
MS M. DERWENT
(Intervenor)
AND
INDEPENDENT CHILDREN’S LAWYER
1) Discharge all previous parenting orders.
2) That the mother and the father share equally parental responsibility for the children, [X] born in 1999 and [Y] born in 2001 (“the children”).
3) That the children live with the mother.
4) That the children spend time with the father as follows:
During school terms:
a)In week one:
i) From the conclusion of school of Tuesday until the commencement of school on Wednesday (or such other weekday as may be agreed); and
ii) From the conclusion of school on Friday until the commencement of school on Monday; and
b)In week two, from the conclusion of school on Tuesday until the commencement of school on Wednesday (or such other weekday as may be agreed).
c)If the children are not spending time with the father pursuant to these orders, on each of the children’s and father’s birthdays, for a period of 2 hours as agreed between the parties and failing agreement:
i) on weekdays between 4pm until 6pm;
ii) on weekend or school holiday days from 10am to 12 noon.
d)Notwithstanding any orders herein from 10am on Father’s Day until the commencement of school on the Monday immediately following.
During school holidays
e)For one half of all school holiday periods at the end of terms 1, 2 and 3 as agreed between the parties and failing agreement:
i) In 2010 and each alternate year thereafter, for the first half of the school holidays, commencing at 12 noon on the first Saturday until 12 noon the following Saturday; and
ii) In 2009 and each alternate year thereafter, for the second half of the school holidays commencing 12 noon on the second Saturday until 12 noon on the following Saturday.
f)For the long summer holidays:
i) In the 2009-2010 summer holidays, for two (2) ten day blocks:
(1)from the conclusion of term 4 2009 until 12 noon on Monday 28 December 2009; and
(2)from 12 noon on Friday 8 January 2010 until 12 noon on Monday 18 January 2010;
ii) For the first half of the summer holidays in 2010-2011 and each alternate year thereafter; and
iii) For the second half of the summer holidays in 2011-2012 and each alternate year thereafter.
g)Notwithstanding any other order, for Christmas:
i) in 2009 and each alternate year thereafter from 2 pm on Christmas Day until 5pm Boxing Day.
ii) in 2010, and each alternate year thereafter from 2pm on Christmas Eve until 2pm on Christmas Day.
h)For such further and other periods as agreed in writing between the parties from time to time.
5) That the father’s time with the children is suspended as follows:
a)On Mother’s Day each year from 10am until the commencement of school on Monday immediately following.
b)If the children are spending time with the father pursuant to these orders, on each of the children’s and mother’s birthdays, for a period of 2 hours as agreed between the parties and failing agreement:
i) on weekdays between 4pm until 6pm;
ii) on weekend and school holiday days from 10am to 2 pm.
c)Notwithstanding any other order, for Christmas:
i) in 2010 and each alternate year thereafter from 2 pm on Christmas Day until 5pm Boxing Day.
ii) in 2009, and each alternate year thereafter from 2pm on Christmas Eve until 2pm on Christmas Day.
6) That for the purposes of spending time with the children:
a)the father will collect the children from, and return them to their school(s) where these orders specify that the children's time starts or concludes at school;
b) the mother will deliver the children to the father's home, and collect them from his home, for all non-school changeovers.
7) That the children spend time with Ms M. Derwent (“the paternal grandmother”) at times that they are spending time with the father pursuant to these orders.
8) That all parties be restrained from bringing (or permitting any other person to bring) the children into contact with Mr D, the paternal grandfather.
9) The children to communicate with the father by telephone:-
a)At any reasonable time the children or either of them express a wish for such communication; and
b)the father be at liberty to telephone the children at all reasonable times and in any event not less than twice per week on non-contact Sundays and Thursday between 5 pm and 7 pm; and
c)In order to facilitate orders 9(a) and (b) above, the mother will ensure that the children's mobile telephone is charged, switched on, has credit and available to the children at all reasonable times and that the children have privacy to communicate with the other parent.
10) That each party inform the other of their:
a)ordinary residential address at which they accommodate the children when the children are living with or spending time; and
b)current landline and mobile telephone numbers,
and promptly advise one another of any changes to same, within 48 hours of such change.
11) That each party inform the other party of their intention to holiday and/or visit interstate with the children, including details of the children’s interstate accommodation no later than fourteen days prior to their intended departure.
12) That each party shall ensure that the other party is advised promptly of any medical emergency or significant illness suffered by or relating to the child or children and including sufficient details to enable both parties to be consulted in respect to or fully advised regarding such illness or condition and any treatment recommended or provided to visit the child and or children if hospitalised.
13) That each party shall do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the father, the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school, including but not limited to parent teacher interviews.
14) That the mother, father and paternal grandmother shall do all things necessary to enrol in the Keeping Contact Programme offered by Unifam Sydney (telephone 9373 5500) and attend all consultations as may be reasonably required by that service and follow all reasonable directions of that service, including ensuring that the children attend if requested.
15) That the mother, father and paternal grandmother share equally the costs of the Keeping Contact Programme.
16) The Independent Children's Lawyer is authorised to provide to the co-ordinators of Keeping Contact copies of the reports prepared by Dr Todd Jacobson in these proceedings dated 23 June 2008 and 28 January 2009.
17) That until otherwise ordered each party, MR DERWENT born in 1969 and MS A. DERWENT born in 1972 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children [X] born in 1999 and [Y] born in 2001 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders its removal.
18) The parents and the paternal grandmother shall not:
a)Speak to the children, or in the presence or within the hearing of the children, in a manner that is demeaning or derogatory or insulting to another party or a person with whom another party has a relationship;
b)Interrogate the children about the activities or relationships of the other party;
c)Discuss with the children or in the presence or within the hearing of the children any issues arising in these proceedings or allow the children to read any court documents.
19) The mother shall arrange for the children to attend upon the Independent Children's Lawyer so that the Independent Children's Lawyer can explain to the children that these Orders have been made and the general effect of the Orders.
NOTATION
20) The parties agree that should the paternal grandfather return to Australia that would not of itself constitute a change of circumstances sufficient to ground a variation to these orders.
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