Elvin & Daking & Anor

FAMILY COURT OF AUSTRALIA

ELVIN & DAKING AND ANOR

[2014] FamCA 218

FAMILY LAW – CHILDREN – Best interests – with whom the children shall live and spend time – no orders sought in respect of the two eldest of four children – two eldest children estranged from the father – paternal grandmother a party to proceedings – father made sexual abuse allegations against the mother’s partner – youngest child has lived with the paternal grandmother in the interim – sibling separation – third child has special needs – father has a history of illicit drug use – two youngest children have meaningful relationships with both parents – insufficient evidence to prove allegations of sexual abuse or unacceptable risk of sexual abuse – father poses risk of psychological harm to the children – children to live with the mother – time spent by the children with the father to be supervised by the paternal grandmother

FAMILY LAW – CHILDREN – Parental responsibility – presumption of equal shared parental responsibility rebutted by evidence of family violence perpetrated by the father – mother to have sole parental responsibility for the children

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B

APPLICANT:

Ms Elvin

FIRST RESPONDENT:

Mr Daking

SECOND RESPONDENT:

Ms Daking

INDEPENDENT CHILDREN’S LAWYER:

NLS Law

FILE NUMBER:

NCC

1685

2012

DATE DELIVERED:

4 April 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

10, 11, 12 & 13 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R Wilkinson

SOLICITOR FOR THE APPLICANT:

Winder Lawyers

COUNSEL FOR THE 1^ST RESPONDENT:

N/A

SOLICITOR FOR THE 1^ST RESPONDENT:

N/A

COUNSEL FOR THE 2^ND RESPONDENT:

Mr D Murray

SOLICITOR FOR THE 2^ND RESPONDENT:

Pater Hamilton & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr P Sharrock

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

NLS Law

Orders

All former orders relating to the following children (“the children”) are discharged:
(a) T, born … 2001; and
(b) B, born … 2006.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Unless otherwise agreed with the mother, the child B shall spend time with the father under the personal supervision of the paternal grandmother:
(a)During school terms, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on the first Saturday of each term;
(b)For the first week of the mid-year school holidays, commencing at 9.00 am on the first Saturday of those holidays and ending at 9.00 am on the next Saturday; and
(c)For one week each year, commencing at 9.00 am on the first Saturday of January and ending at 9.00 am on the next Saturday.
Unless otherwise agreed with the mother, the child T shall spend time with the father under the personal supervision of the paternal grandmother:
(a)From 9.00 am until 12.00 noon Saturday on the first and each subsequent visit made by the child B with the father pursuant to Order 4(a) hereof; and
(b)From 9.00 am until 12.00 noon on the first Saturday of the visits made by the child B with the father pursuant to Orders 4(b) and 4(c) hereof.
For the purpose of implementing Orders 4 and 5 hereof, unless otherwise agreed:
(a)The mother or her nominee shall cause the delivery of the children to the paternal grandmother at the McDonald’s Restaurant at Shopping Centre A, NSW at the commencement of the children’s visits to the father;
(b)The paternal grandmother shall deliver the children to the mother or her nominee at the McDonald’s Restaurant at Shopping Centre A, NSW at the conclusion of the children’s visits to the father; and
(c)The father is restrained from attending the McDonald’s Restaurant at Shopping Centre A, NSW at the time of such changeovers.
The father is restrained from consuming alcohol during any period in which the children spend time with him, and also during the period of 24 hours immediately preceding such time.
Pursuant to s 68B of the Family Law Act the father and paternal grandmother are restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence; and
(b)Any school attended by either child.
Unless otherwise agreed between them, the mother and paternal grandmother shall take all reasonable steps to ensure the children communicate by telephone with the paternal grandmother and/or father:
(a)Each Wednesday at 5.00 pm;
(b)On the children’s birthdays at 5.00 pm;
(c)On Father’s Day at 5.00 pm; and
(d)On Christmas Day at 5.00 pm;
and for that purpose the mother shall establish the children’s telephone connection with the paternal grandmother on the telephone number provided to her by the paternal grandmother.
Each party is restrained from denigrating any other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating another.
The mother shall authorise and request the principal of any school attended by the children to provide to the father and paternal grandmother, at their expense, copies of all school reports and school photograph order forms relating to the children.
Leave is granted to the mother to provide a sealed copy of these orders to the principal of any school attended by the children.
Each party shall forthwith inform the others, and keep the others informed, of their respective mobile telephone number and email address.
In the event of any party notifying either the police or a prescribed child welfare authority that either child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:
(a)       A copy of these orders;
(b)       A copy of these reasons for judgment; and
(c)       A copy of the Family Report dated 19 June 2013.
Within seven days hereof the parties shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.
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.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1685 of 2012

Ms Elvin

Applicant

And

Mr Daking

First Respondent

And

Ms Daking

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings concern the two youngest children of the applicant mother and respondent father. The paternal grandmother was joined to the proceedings as the second respondent.
No party sought any parenting orders in respect of the parents’ two oldest children, notwithstanding both are still minors.
Presently, the third child lives with the mother and the youngest child lives with the paternal grandmother.
Allowing for some equivocation by the father in the last moments of the trial, each of the three parties sought for the two youngest children to live with them and to have sole parental responsibility for the two children.

Background

The mother and father began their relationship in about 1995.
Their four children were born in 1996, 1998, 2001, and 2006.
The two youngest children are now aged 12 and 7 years respectively.
The mother and father separated under the one roof in late 2006.
In 2007 the father moved into a caravan parked in the backyard of the former matrimonial home and in 2008 he vacated the property entirely, leaving the mother and four children in occupation of it.
The evidence is relatively scant about the manner in which the children thereafter interacted with the father and paternal grandmother. The father alleged the children spent time frequently with him, which was confirmed by the mother,[1] but the paternal grandmother alleged they mostly spent time at her home and she would care for them.[2] In any event, it is common ground the two eldest children began resisting visits to at least the father.
[1] Mother’s affidavit, para 22
[2] Paternal grandmother’s affidavit, para 29
The children continued to live with the mother until December 2009, when the youngest child made an oral representation to the father and paternal grandmother which led them to believe she was sexually abused by the mother’s new partner, Mr H. The father and paternal grandmother reported the alleged abuse to the authorities and the father retained the youngest child in his care. The third child, however, remained in the residential care of the mother.
Thereafter, there was little interaction between the youngest child and her siblings or the mother.[3] Equally, the interaction between the third child and the father, paternal grandmother, and youngest child ceased by August 2010.[4]
[3] Paternal grandmother’s affidavit, paras 23-24
[4] Paternal grandmother’s affidavit, para 39
The youngest child remained resident with the father until about April 2011, when she returned to live with the mother.[5] The evidence did not reveal why that change of residence occurred.
[5] Paternal grandmother’s affidavit, para 24
The youngest child remained resident with the mother until she made a second allegation of sexual abuse by Mr H in August 2011. That caused the father to make another report to the authorities and he again retained the child in his care. Again, she then spent little time with her siblings or the mother.[6]
[6] Family Report, para 14
The mother was discontent with that arrangement and commenced these proceedings in June 2012 in the Federal Magistrates Court (as the Federal Circuit Court then was).
The youngest child remained resident with the father until December 2012 when interim orders were made, with the parties’ consent, in respect of the two youngest children. Relevantly, the orders provided for:
(a)The youngest child to live with the paternal grandmother;
(b)The youngest child to spend time with the father for four hours on two occasions each week, supervised by the paternal grandmother;
(c)The youngest child to spend time with the mother for four hours on two occasions each week, supervised by the paternal grandmother, with the third child to attend one of those visits each fortnight;
(d)The third child to live with the mother;
(e)The third child to spend time with the father on one occasion per fortnight, supervised by the paternal grandmother;
(f)Restraint of the mother from allowing either child any contact with Mr H; and
(g)The father’s submission to urinalysis drug testing once each week and at any other time upon request by the mother or Independent Children’s Lawyer.
Simultaneously, the proceedings were transferred to this Court.
The parties did not adhere to the interim orders. They implemented varied arrangements. The paternal grandmother arranged for the youngest child to spend additional time with the father,[7] though the mother did not consent to that change. In May 2013, the mother and paternal grandmother made arrangements for the youngest child to see the mother each alternate weekend,[8] and similarly there is no evidence the father consented to that change.
[7] Paternal grandmother’s affidavit, para 30
[8] Mother’s affidavit, para 47
There was an additional layer of complexity in the proceedings because the final parenting orders must cater to the very special needs of the third child. He is acutely disabled as a consequence of his contraction of meningitis as a newborn. He has cerebral palsy, global developmental delay, epilepsy, severe intellectual impairment, and significant visual impairment. He can walk short distances but often requires a great deal of physical assistance. Intensive care is required to enable his daily function. His regular professional assistance includes one-on-one help from a teacher’s aide at school, an occupational therapist, a speech therapist, paediatric review, and support workers from the Spastic Association and the Blind Society.[9]
[9] Family Report, paras 1, 105, 108, 109

Proposal and evidence of mother

During final submission the mother abandoned reliance upon the orders proposed in her Amended Initiating Application filed on 12 September 2013 and she instead adopted the proposal of the Independent Children’s Lawyer.
The mother relied upon:
(a)Her affidavit sworn on 20 December 2013;
(b)The affidavit of her partner, Mr H, sworn on 20 December 2013; and
(c)The affidavit of the maternal grandfather sworn on 20 December 2013.

Proposal and evidence of father

Although the father participated throughout the proceedings, he failed to comply with procedural directions about the filing of fresh evidence. He failed to file any affidavit after the affidavit he filed on 29 November 2012, but was permitted to rely upon that affidavit despite its antiquity because he was bereft of evidence without it.
The father outlined the orders he proposed at the commencement of the final hearing. It was clear he abandoned some of the orders set out in his Response filed on 29 November 2012. He proposed that both children live with him and that he have sole parental responsibility for them. He no longer pressed for the children to spend only supervised time with the mother. Instead, he wanted them to spend alternate weekends and parts of school holidays with her, but he maintained his proposal for an injunction precluding the mother from allowing the children any contact with Mr H.
The father changed his position again during final submissions. He ultimately proposed the two children should live with the paternal grandmother and he accepted he should spend time with them each alternate weekend under the supervision of the paternal grandmother.

Proposal and evidence of paternal grandmother

The paternal grandmother adhered to the orders proposed in her Amended Response filed on 1 October 2013, which provided for:
(a)Her to have sole parental responsibility for the two children;
(b)The children to live with her;
(c)The children to spend substantial and significant time with the mother, subject to her restraint from allowing the children to spend any time with Mr H; and
(d)The children to spend time with the father at any time she thought appropriate, under her supervision.
The paternal grandmother relied upon:
(a)Her affidavit filed on 20 December 2013; and
(b)The affidavit of Ms C filed on 31 January 2014.

Proposal of independent children’s lawyer

The Independent Children’s Lawyer tendered as an exhibit the minute of orders she proposed at the commencement of final submissions.[10] In essence, her proposal comprised:
(a)The children’s residence with the mother and the mother having sole parental responsibility for them;
(b)The children spending time with the paternal grandmother for two hours once per month, supervised at a contact centre for an initial period of six months, and thereafter dispensation of the need for supervision;
(c)The children spending time with the father:
(i)For two hours once every two months supervised at a contact centre, but conditional upon him first completing a number of educational programs and successfully completing therapy for “drug and alcohol related issues”; and
(ii)For three hours once per month under the supervision of the paternal grandmother, but conditional upon him first providing to the mother’s solicitor a report from a “psychologist or psychiatrist” confirming that “he does not represent a risk to the physical, emotional or intellectual welfare of the children”.
[10] Exhibit ICL1

Additional evidence

The Independent Children’s Lawyer and the parties also relied upon the evidence contained within:
(a)The Family Consultant’s memorandum dated 7 December 2012; and
(b)The Family Report dated 19 June 2013.
The Family Consultant who prepared the Family Report was cross-examined. Her evidence was convincing and I accept it in all respects.

Applicable legal principles

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon 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).
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).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (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 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 major long-term issues (s 65DAE).
However, 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 applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, 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).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

Best interests of children – primary considerations

Section 60CC(2)(a)

There was no controversy about the quality of the youngest child’s relationship with the mother and father. It was accepted she has a meaningful relationship with both parents.
The youngest child has a “warm and loving relationship” with the paternal grandmother,[11] but since the paternal grandmother is not the child’s “parent”, that is an additional consideration under s 60CC(3)(b) of the Act rather than a primary consideration under s 60CC(2)(a) of the Act.
[11] Family Report, para 112

While there was no controversy about the quality of the third child’s relationship with the mother, implicitly at least, there was some controversy about the quality of third child’s relationship with the father. The father contended the third child should live with him instead of the mother, so he must believe the third child has a meaningful relationship with him. The mother, however, does not believe the third child has a meaningful relationship with the father at all.
When the third child is uncomfortable or anxious he “starts to verbalise – calling for his mother and he will also flap and rock”. If he is very upset he will “start to bite himself”.[12] The mother alleged, without challenge, the third child acted that way in the past when in the presence of the father. Such behaviour was independently witnessed by the Family Consultant, albeit in a milder form. After the third child was introduced to the father in June 2013, the Family Consultant saw the third child start rocking and to call out for the mother, but he “seemed happy enough” to hug and kiss the father goodbye when requested at the end of the observation session. However, when the third child was re-united with the mother the Family Consultant observed him to be “very happy”.[13]
[12] Family Report, para 107
[13] Family Report, paras 117-118
In all probability, the third child’s relationship with the mother is much more meaningful to him than the relationship he has with the father, but that does not mean the child’s relationship with the father is not meaningful at all.

Section 60CC(2)(b)

Allegations of family violence and sexual abuse of the child featured prominently in these proceedings. The three parties all filed Notices of Child Abuse or Family Violence at some stage of the proceedings.
The mother filed a Notice on 11 January 2013 alleging the commission of family violence by the father.
The father filed two Notices on 13 February 2013 and 6 September 2013, both of which alleged sexual abuse of the youngest child by Mr H, or at least the risk thereof.
The paternal grandmother filed a Notice on 12 February 2013 alleging the sexual abuse of the youngest child by Mr H, or at least the risk thereof.

Alleged family violence

The mother alleged the father was violent towards her throughout their relationship, often in the presence of the children. She additionally alleged the paternal grandmother was aware of it and occasionally witnessed it.
Two incidents separated by many years exemplify the father’s violent domination of the mother. One was near the beginning of their relationship and the other was near the time of their separation.
When the mother was pregnant with the eldest child in 1996 the father held her up against a wall with his hands around her throat and threatened to punch her in the stomach.[14]
[14] Mother’s affidavit, para 9
In 2005, before the birth of the youngest child the mother was driving a car containing the three eldest children, the father, and the paternal grandmother. The father repeatedly punched the mother as she drove the car, causing the fracture of two of the mother’s ribs and bruising to her shoulder.[15]
[15] Mother’s affidavit, para 13
The mother said the father often slapped her on the back of the head as she drove and he regularly pushed and shoved her when he was consuming alcohol or when “coming down” from using illicit drugs.[16]
[16] Mother’s affidavit, paras 11, 15
The mother also alleged that the father treated her with abject disrespect in the presence of the children by yelling at her and calling her despicable names like “slut” and “piece of shit”.[17]
[17] Mother’s affidavit, para 12
The father’s disgraceful behaviour towards the mother and Mr H did not cease when they separated.
When the children were spending time with him he incited them to telephone the mother and “tell her what a “shit” mother she was”.[18]
[18] Family Report, para 66
On one occasion the father and an acquaintance arrived at the mother’s home and, in the presence of the children, threatened to bash Mr H.[19] The father’s version of the event in cross-examination was slightly different. He said he went to the mother’s home to ask Mr H “if he had a problem”, but even on the father’s version it was likely an aggressive confrontation. On another occasion the father threatened by telephone to attend the mother’s home and “flog” Mr H.[20]
[19] Family Report, paras 11, 68
[20] Family Report, para 79
It is easy to accept the mother’s evidence as correct because she was not challenged about the accuracy of her evidence, she was corroborated by the two eldest children, and the father at least admitted the police were frequently called to intercede in their altercations.
The two eldest children individually reported to the Family Consultant being exposed to physical violence inflicted by the father upon the mother and also to frequent verbal abuse of the mother by the father. They also both alleged the father encouraged them to denigrate the mother and call her names like “bitch” and “slut” to her face. They both now refuse any interaction with the father.[21]
[21] Family Report, paras 3, 9, 31, 34, 90
The mother’s account of the parents’ violent history led the Family Consultant to conclude the father’s behaviour had been “coercive” and “controlling”, about which she was understandably concerned.[22]
[22] Family Report, para 31
The father’s evidence was most unsatisfactory. He deposed in his affidavit and also told the Family Consultant that he and the mother only ever argued and he denied being physically violent towards the mother.[23] However, during cross-examination, when challenged about specific instances of violent conduct, the father simply said he “could not recall” or “did not remember” such threats or violence. He did not deny it.
[23] Family Report, para 46; Father’s affidavit, para 17
Unfortunately, the father’s life is characterised by violent or hostile confrontations with anybody with whom he falls into dispute.
There is enmity between the father and some of his neighbours. The police have been called to their disputes, to which the youngest child has been a frightened witness. Their enmity is so entrenched the father feels the need to have a friend stay at his home whenever he is absent in order to protect it.[24] The father said in cross-examination his neighbour had threatened to “smash [his] head in” and to “get people to break into [his] home”.
[24] Family Report, page 2, paras 31, 49, 72, 98
The youngest child is now so enmeshed in the father’s affairs she distinguishes between “good coppers” and “bad coppers”. She knows the “bad” ones allege the father spat on them, which she believes the father did not do.[25] The father must have discussed those allegations with the child, or at least in her presence.
[25] Family Report, para 98
When the father first conferred with the Family Consultant in December 2012 he was “highly agitated” and spoke openly about the murder of paedophiles, including a relative who he maintained had sexually abused him in his youth and Mr H. The father’s presentation was so disturbing the Family Consultant made a mandatory report to the NSW Department of Family and Community Services (“the Department”) about the risk of harm to the youngest child while in his care due to his suspected illicit drug use.[26]
[26] Memorandum, page 2; Family Report, para 21
When with the Family Consultant in June 2013 the father presented as “quite agitated and aroused and was very argumentative”.[27] He angrily demanded Mr H be ejected from the Court precincts by security staff and was enraged when informed Mr H would be interviewed by the Family Consultant,[28] although why he considered his demand and his conduct to be appropriate remains unexplained.
[27] Family Report, para 42
[28] Family Report, para 124
The father’s irascible presentation to both Family Consultants was consistent with his presentation in Court when giving evidence. He said in cross-examination “I’m always agitated, that’s the way I am”. He attributed his agitation to back pain and discomfort. The father had no hesitation explaining his hatred of paedophiles and how they should be dealt with. In his view a paedophile “shouldn’t be able to breathe our air”.
The two youngest children are at unacceptable risk of psychological harm through their exposure to family violence by the father. That risk extends to their exposure to the father’s violent behaviour more generally, even though it may not meet the definition of “family violence”. That risk can only be satisfactorily mollified by the imposition of conditions upon which the children are able to spend time with him.

Alleged sexual abuse

The father and paternal grandmother both alleged the child was sexually abused by Mr H. Their belief hinges entirely upon statements made by the child.
The child made numerous representations that either expressed or implied her sexual abuse by Mr H over a period of years between December 2009 and August 2013. The representations were made to the father, paternal grandmother, an acquaintance of the paternal grandmother, the counsellor to whom the child was taken, and the Family Consultant.
The mother could not deny the child made the statements alleged, but even so, that does not mean the child’s statements were true. The child’s statements may have been untrue or inaccurate for various reasons and so it is necessary to carefully evaluate the entirety of the evidence to determine what level of risk, if any, Mr H poses to the child’s safety.
Unfortunately, the father and paternal grandmother appeared to lack the insight to understand the distinction between the mere making of a statement and the truth and accuracy of the statement. The father and paternal grandmother both apparently believe in the truth and accuracy of anything uttered by the child.
The father said in cross-examination:
I believe what my daughter told me. I’m her father. I’ve got to believe her.
The paternal grandmother said in cross-examination:
I believe my grand-daughter. Yes I do.
A child at that age would not lie about that.
If it was a lie she would have forgotten all about it.
On 25 December 2009, while visiting the father and paternal grandmother, the youngest child announced while watching television words to the effect:
[Mr H] touched me on the tootie.
It is common ground the youngest child used the word “tootie” to describe her genitals.
At the time of the revelation the child was barely three years of age and she was still living with the mother. Mr H was then the mother’s neighbour and while he visited her regularly he was still not cohabiting with the mother.
The paternal grandmother immediately telephoned the mother to inform her of the revelation, but the mother denied it would have been possible for Mr H to have done such a thing.
The father reported the allegation to police and the Department. The complaint was investigated, which involved interview of the child.
The father decided to retain the child in his care. It is not correct, as the paternal grandmother asserted, that the Department placed the youngest child into his care.[29]
[29] Paternal grandmother’s affidavit, para 23
The youngest child was returned by the father to the mother’s residential care in April 2011.[30] There is no explanation for why, but it must have been a voluntary decision. There was no suggestion the mother abducted the child, there was no intervention by the Department in the family’s affairs, and there were no pending proceedings in which parenting orders dictated such arrangements. Whatever fear the father formerly held for the youngest child’s safety in the mother’s household must have evaporated.
[30] Paternal grandmother’s affidavit, para 24
Some months later, on 15 August 2011, the child made another representation that implicated Mr H in sexual impropriety, but there is a curious and unresolved inconsistency in the evidence about the nature of her representation.
The father alleged the exact words the child spoke to him were:
Dad, [Mr H] touched me again.
The paternal grandmother did not hear the child’s statement directly. It was reported to her later by the father. She alleged the father reported to her the child had said:[31]
[Mr H] touched me on the bum and he wee’d in my mouth.
[31] Paternal grandmother’s affidavit, para 25; Family Report, para 12
The father said in cross-examination he did not recall saying those words to the paternal grandmother because he recollected the child’s mention of being touched on the “bum” arose during her police interview.
There is no adequate explanation for the serious discrepancy in their evidence. The only conclusion rationally open is that the child did not say to the father what he subsequently related to the paternal grandmother.
In any event, the father again reported the allegation to police and the child was interviewed a second time.
The child’s answers in the two police interviews were deemed “unreliable and inconsistent” and so the allegations were unsubstantiated and the investigation was closed.[32]
[32] Memorandum, page 3; Family Report, paras 13, 69
The father decided to retain the youngest child in his care again. It is not correct, as the paternal grandmother again asserted, that the Department placed the child back in the father’s care.[33]
[33] Paternal grandmother’s affidavit, para 27
The youngest child allegedly made another representation of sexual impropriety by Mr H some time in mid 2012 to a person named Ms G. A statutory declaration purporting to be declared by that person on 10 December 2012 relating the child’s representations was annexed to the Notice of Child Abuse filed by the father on 6 September 2013.
The authenticity of the statutory declaration was not verified and no explanation was offered for why the document was not annexed to the father’s first Notice of Child Abuse filed on 13 February 2013. An order was made permitting the father to file an affidavit by that person,[34] but no affidavit was ever filed and he offered no explanation for why. Neither did the paternal grandmother. If the person making the statutory declaration was unwilling to give sworn evidence and face cross-examination on the issue then very little weight can be accorded to the contents of the statutory declaration. The paternal grandmother’s counsel properly accepted that must be so.
[34] Order 8(b) made on 30 August 2013.
When speaking with the Family Consultant in December 2012 the youngest child said it was not safe for her to live with the mother since Mr H lived with the mother. She confirmed Mr H had touched her on the “tootie” and said it had occurred “six” times over a “long time”.[35]
[35] Memorandum, page 3
On 23 April 2013 the youngest child told the mother of her school friend:[36]
[Mr H] touched me.
(at which point she pointed towards her groin)
[36] Affidavit of Ms C, para 6; Annexure to father’s Notice of Abuse filed 6/9/13
When speaking with the Family Consultant in June 2013 the youngest child said she believed the reason for their conference was for her to tell the Family Consultant that Mr H had touched her on the “tootie”. She said it had happened when she was around “two or four” years of age, implying it happened only once and she was quite uncertain as to when.[37]
[37] Family Report, para 99
The child was taken to a counsellor by the paternal grandmother for three sessions of counselling between June and August 2013. During cross-examination the paternal grandmother conceded the counselling was arranged to help the child deal with her sexual abuse by Mr H. Among a number of other volunteered grievances about Mr H, the child told the counsellor Mr H had touched her on the “rude part ages ago”, which she clarified to have been a Christmas evening – an obvious reference to her revelation nearly four years before on 25 December 2009.[38]
[38] Exhibits M2 and M3
At face value, the child’s allegations against Mr H are indeed serious. There are, however, many other aspects of the evidence that tend to suggest the child’s allegations are unreliable.
It was submitted the child’s distressed demeanour when she reported her allegation to the mother of her school friend in April 2013 allowed an inference to be drawn about the sincerity of the child’s allegation, but I reject that submission. Firstly, the evidence of that witness enables an inference to be just as easily drawn that the child was distressed because she was being prevented from seeing her mother. Secondly, when the child similarly reported the same allegation to the father, paternal grandmother, her counsellor, and the Family Consultant she was not distressed at all. In fact, her demeanour at those times was entirely incongruent with any distress about being molested.
The repetition of the allegations over several years does not necessarily connote the reliable recollection of an important event. It just as easily suggests repetition of a rehearsed story.
The Family Consultant said she had:[39]
…concerns about the allegations made by the child and believes that there may be some basis to the mother’s belief that the child was coached to make these allegations.
[39] Family Report, para 34
The Family Consultant also said she had:[40]
…strong concerns that the father and/or paternal grandmother may share incorrect or inappropriate information with the child with regards to the current parenting matter…
[40] Family Report, para 34
While there is no evidence to justify a conclusion the father or paternal grandmother induced the child to lie about her experiences, there can be little doubt the father and/or paternal grandmother discussed with the youngest child, or at least in her presence, the issue of her alleged sexual abuse by Mr H. The Family Consultant envisaged that prospect when she was invited to read the notes of the child’s counsellor.[41] The idea of sexual impropriety could easily have become embedded and germinated in her mind as an important topical issue between the maternal and paternal families. She told the Family Consultant in December 2012 she knew it was not safe for her in the mother’s household. She believed the purpose of her visit to the Family Consultant in June 2013 was to report her sexual abuse by Mr H. She understood the perceived need for her to make complaints about Mr H to her counsellor in August 2013, including her sexual abuse by him.
[41] Exhibits M2 and M3
Importantly, when pressed, the child was unable to provide much contextual detail to her allegations of sexual abuse. The few details she did offer were inconsistent. She could not explain to the Family Consultant in December 2012 what happened after her “tootie” was touched by Mr H. She also told the Family Consultant in June 2013 she could not remember anything else about the incident. She told the first Family Consultant it happened six times but implied to both the second Family Consultant and her counsellor it only happened once. She was unable to say whether she was two or four years of age when it occurred. There was no mention to the Family Consultant or the counsellor about Mr H touching her on the “bum” or “wee[ing] in her mouth”, as she allegedly disclosed in August 2011.[42]
[42] Memorandum, page 3; Family Report, para 99; Exhibits M2 and M3
The absence of, and inconsistency about, contextual detail is significant because it tends to suggest the child was not reporting an actual memory. Rather, it tends to suggest she was reporting a fabricated story for which the surrounding details had not been incorporated and so inconsistent details were spontaneously added whenever she felt obliged to provide them.
Such an inference is not idle speculation. The police and the Department concluded the child’s allegations were unreliable and inconsistent and did not act upon them. When the child spoke with the mother about the issue in November 2011 she expressly admitted her fabrication. The child said to the mother:[43]
I was only pretending when I said that [Mr H] had touched me.
[43] Mother’s affidavit, para 36

That evidence is significant because it proves the child either lied about her sexual abuse by Mr H or she lied to the mother when she said she was only pretending. Either way, the child must have been dishonest in some respect.
The father and paternal grandmother had no explanation to offer for why they slavishly adhered to their belief in the truth of the child’s allegations against Mr H in the certain knowledge that the child was capable of dishonesty on the issue.
Children fabricate stories for all sorts of reasons. It is naïve to think otherwise. It is unnecessary to attribute a motive to the child for her fabrication, but the evidence hints at why the child may have implicated Mr H in such stories. The child told the Family Consultant in June 2013:[44]
I just want mum to loose (sic) her boyfriend [Mr H] so that my mum and dad can be together again.
[44] Family Report, para 100
The child informed the Family Consultant the father had told her that Mr H was the reason why he and the mother were no longer together.[45]
[45] Family Report, para 100
Besides the inherent unreliability of the youngest child’s allegations, there is the evidence of Mr H to consider. The Family Consultant described him as a “concrete thinker” who was anxious about being cross-examined in Court but was prepared to submit to it to support the mother and her family.[46] Mr H presented similarly in Court. He gave careful consideration to the questions he was asked and offered measured and thoughtful answers. He engaged the puissant gaze of the paternal grandmother’s counsel and calmly denied any sexual impropriety with the youngest child. His denial was disarmingly genuine and I accept it as truthful.
[46] Family Report, para 82
For the sake of completeness, it should be noted the youngest child’s two older sisters reported to the Family Consultant they never felt uncomfortable around Mr H and had no concerns about his behaviour either towards them or their two younger siblings.[47]
[47] Family Report, paras 29, 91
The father’s propensity to think the worst when the children were in the care of the mother was evident from his comments to the Family Consultant in June 2013. He believed the third child may also have been sexually abused merely because the child said the word “bum” during a game and made some other grunting noises during their time together in December 2012.[48] Nothing related by the father to the Family Consultant, or during his cross-examination, could reasonably be the genesis of such apprehension. He must have ultimately realised that to be so because he adduced no evidence about it and no submission was ultimately made about any sexual abuse of the third child, or the risk thereof.
[48] Family Report, paras 29, 44
The evidence is insufficient to prove either child was probably sexually abused by Mr H. Nor is the evidence sufficient to establish an unacceptable risk of physical or psychological harm to either child through their subjection to sexual abuse by Mr H. There is no need for any restriction upon the children’s contact with Mr H. Those conclusions are consistent with the submissions of both the mother and the Independent Children’s Lawyer.

Best interests of children – additional considerations

Not all considerations pursuant to s 60CC(3) of the Act were addressed in the evidence. It is therefore only necessary to canvass the features of the evidence that the parties and Independent Children’s Lawyer considered influential.

Mother’s parenting capacity

The Family Consultant noted the father and paternal grandmother did not raise with her any impairment to the mother’s parenting capacity, as their focus was on the risk of the youngest child’s sexual abuse by Mr H and the mother’s alleged failure to protect the child from him.[49] The father and paternal grandmother conducted the final hearing in the same way.
[49] Family Report, para 30
The only other way in which the mother was challenged and criticised was her failure to comply with the interim injunction precluding her from allowing either child any contact with Mr H.[50]
[50] Order 2.8 made on 10 December 2012
It is common ground Mr H has continued to live either within the mother’s home, or at least on the same property, since the interim injunction was made. The mother, Mr H, and the maternal grandfather alleged they made arrangements to prevent the third child’s interaction with Mr H notwithstanding their commonality of residence. Understandably, the father and paternal grandmother doubt the unconditional success of those arrangements. Of course, the injunction has been observed in respect of the youngest child, because she has continued to live with the paternal grandmother and Mr H has not attended the mother’s visits with her.
While I accept the mother and the members of her household may have tried to observe the spirit of the interim injunction, I share the opinion of the father and paternal grandmother that well-intentioned efforts at compliance is not the same as assiduous compliance. In all likelihood, the injunction has not always been faithfully honoured by the mother. Although compliance may have presented practical difficulties to her and Mr H, she should have complied with the interim injunction regardless. Mr H should have departed the household pending determination of the proceedings.
Although not ultimately pursued as an issue, the mother was liable to criticism in one further respect. By her own admission, she was not diligent enough in ensuring her adherence to a regular routine of visits and telephone communication with the youngest child. Her unreliability was clearly a disappointment to the child.[51]
[51] Family Report, para 97
Overall, the Family Consultant considered the mother was “doing a very good job of caring for an extremely disabled child under very difficult circumstances”.[52] She endorsed that opinion in cross-examination and strongly recommended that the youngest child also live with the mother. She said the youngest child was quite resilient and would likely settle with the mother quite quickly. I accept her evidence.
[52] Family Report, para 30

Father’s parenting capacity

Despite the baffling belief of the father and paternal grandmother to the contrary, the father’s parenting capacity has been grossly impaired by his use of illicit drugs over many years.
The evidence does not permit acceptance of the father’s evidence that he has been abstinent from illicit drug use for the past few months. Either he still uses illicit drugs or his abstinence is so recent there remains a high chance of his relapse. Use of illicit drugs is inimical to responsible parenting, principally for two reasons: it role-models destructive and illegal behaviour to the children and, more immediately, it deprives the parent of the cognitive ability to provide safe and reliable supervision of the children.
The father was patently untruthful on the topic of his drug use. His statements to the Family Consultant, the depositions in his affidavit, and his evidence in cross-examination were hopelessly inconsistent.
In his affidavit, he admitted to only “trying [cannabis]” in his early adulthood.[53] He made no mention of any other drug use.
[53] Father’s affidavit, para 12
When he conferred with the first Family Consultant in December 2012 he admitted to the use of methamphetamine earlier in the year.[54]
[54] Memorandum, page 5
When he met with the Family Consultant in June 2013 he conceded current use of cannabis and amphetamines. He admitted he used illicit drugs in the past in the presence of the children when they visited him. Some years ago, he caused the eldest child, who was then only 12 years of age, to drive his car home while he occupied the front passenger seat in an intoxicated stupor and the other children were in the back seat. On another occasion in 2012 he drove the children in a car while he was under the influence of amphetamines, for which he was charged and convicted. His sentence included disqualification of his driver’s licence. Police visited his home on another occasion in 2012 and found the father intoxicated, even though the youngest child was in his care at the time. The father admitted to the Family Consultant he failed to comply with the interim orders made in December 2012 requiring him to submit to urinalysis.[55]
[55] Family Report, page 3, paras 5, 8, 16, 19, 32, 38, 40; Memorandum, page 2
When cross-examined, the father initially said he ceased using amphetamines when he ceased his transport industry employment in 2011. He then conceded he occasionally did use amphetamines after that, but was unsure whether it was in 2012 or 2013. Eventually he was impelled to admit he was stopped by police officers in Sydney as recently as December 2013, at which point he admitted to them he was using “ice”, which he conceded was a form of amphetamines. He was forced to admit his evidence the day before “wasn’t quite true”. He said he had not used amphetamines since that incident, but the paternal grandmother contradicted him. She said she knew the father had used amphetamines since Christmas 2013.
The father said in cross-examination he “gave up [cannabis] when [he] split up with the mother”, but that was certainly untrue because he told the Family Consultant he was still using cannabis for his back pain when he met with her in June 2013.
The father’s use of illicit drugs and alcohol and his allowance of adult associates into his house were not conducive to a stable and safe environment for the children. On one particular occasion in 2012 the police attended the father’s home and found a number of men, including the father, in the company of the youngest child and an unrelated teenage girl. The father admitted he and his male friends were intoxicated. He admitted he was aggressive and shouted at the police. He admitted the youngest child was upset and asked him to stop shouting. He admitted that was not a suitable environment for the youngest child.
The teenage girl who featured in that incident apparently lived with the father and the youngest child for a while because she was homeless. Foolishly, the father allowed that girl to become embroiled in a dispute with the two eldest children, which dispute played out over the internet. The father’s conduct only served to accentuate his estrangement from the two eldest children, attracted the attention of the Department, and resulted in the removal of that girl from his household.[56]
[56] Family Report, paras 17-18
The father’s lack of propriety is evident from the manner in which he chose to engage the Family Consultant in tasteless conversation in the presence of the children.[57]
[57] Family Report, para 115
The father seemed entirely self-absorbed. While being observed by the Family Consultant in the company of the children he wanted to leave the room to retrieve some food. He was plainly more interested in the imminent arrival of Mr H than the two oldest children.[58]
[58] Family Report, para 116
The father’s insensitivity with the third child was, however, most telling. When observed by the Family Consultant in December 2012, the father was “unable to maintain focus” and was “in and out of [the child’s] personal space, which unsettled [the child]”.[59] When again observed by the Family Consultant with the third child in June 2013, the father pushed, prodded and teased the third child. Even though the father was “rather jovial”, the third child was certainly not. He began to rock and call out for the mother. Amazingly, in reference to the child’s rocking, the father told him to “go faster”.[60] In cross-examination the father said “we always play that game”. The father did not then, and does not now, have any appreciation of how his conduct elevated the child’s anxiety and caused him distress.
[59] Memorandum, page 2
[60] Family Report, para 117
The Family Consultant also said, without challenge, that she had concerns the father may be attempting to alienate the youngest child from the mother and her siblings.[61] He certainly conscripted the older children in a campaign of denigration of the mother in the past, by having them telephone the mother and cruelly criticise her,[62] but whatever influence he has exerted over the youngest child has not yet impaired the quality of her relationship with the mother. Nevertheless, the father’s adverse opinions of the mother, which he was quick to share, will probably ultimately influence the youngest child against the mother if she is principally within his care.
[61] Family Report, para 34
[62] Family Report, para 66
The father was forced to make a concession in cross-examination about his impaired parenting capacity. Showing some degree of insight, he said “my parenting is not good at the moment”. He was correct about that. That realisation must have been the reason for his eventual acknowledgement it was not feasible for the children to live with him.

Paternal grandmother’s parenting capacity

It is appropriate to firstly acknowledge a positive aspect of the paternal grandmother’s parenting capacity. The youngest child seems to be socialising and progressing reasonably well at school.[63] To that extent at least, the paternal grandmother has so far catered to the child’s needs.
[63] Exhibit PGM1
However, the parenting capacity of the paternal grandmother was defective for a number of reasons and her oral evidence served only to accentuate her lack of insight and unsuitability to parent young children. That conclusion is demanded by numerous pieces of evidence.
The paternal grandmother denied all knowledge of the father’s past and current illicit drug use when she conferred with the Family Consultant in June 2013.[64] Her denial was plainly false because she deposed in the affidavit she filed in December 2013 to her knowledge of the father’s regular use of illicit drugs when he cohabited with the mother.[65] Unsurprisingly, when pressed to explain the inconsistency during cross-examination the paternal grandmother was unable to do so. The inescapable conclusion is she was prepared to resort to dishonesty when it suited her.
[64] Family Report, page 3, paras 32, 59
[65] Paternal grandmother’s affidavit, para 9
The paternal grandmother explained in cross-examination how, in her view, the father’s use of amphetamine calmed him down, implying it was beneficial. In her opinion, the father’s parenting capacity was not adversely affected by his illicit drug use. The foolishness of that view need not be elaborated. As the Family Consultant correctly observed, it is difficult to repose trust in the paternal grandmother to ensure the children are safe in the father’s care if she is unperturbed by his intoxication.[66]
[66] Family Report, para 32
The paternal grandmother was also dismissive of the abundance of evidence about the father’s potent history of family violence. She denied the mother’s allegations, deflected blame from the father, and attributed blame to them equally. Even though she was aware of the mother’s professed fear of the father, the paternal grandmother was complicit in the father’s attendance at the visits of the mother with the youngest child, which were supervised by the paternal grandmother.[67] The paternal grandmother in fact seemed to condone the father’s violent solution to problems. When discussing the youngest child’s revelation of sexual abuse by Mr H in December 2009, the paternal grandmother admitted the father was angry. She said:
[The father] would have gone over and punched the Christ out of [Mr H]. I’d have done the same thing.
[67] Family Report, page 3, paras 3, 31, 36, 56
The Family Consultant was suspicious about whether the paternal grandmother was complying with the interim injunction requiring her to supervise any time spent by the child with the father.[68] Both the father and paternal grandmother alleged compliance with the injunction, but the Family Consultant’s doubts had a valid evidentiary basis. In consultation with the Family Consultant, the youngest child described walking from school back to the father’s house, which she called “home”, she reported sometimes sleeping at the father’s home, she reported sometimes living at the father’s house, and the mother reported being told by the father’s neighbour that the youngest child spent unsupervised time with the father overnight.[69]
[68] Family Report, page 3, para 33
[69] Family Report, paras 35, 72, 95
Even if the paternal grandmother did faithfully supervise the youngest child with the father, there are good reasons to doubt her willingness to continue doing so on an indefinite basis.
Firstly, there was a great deal of uncertainty surrounding the paternal grandmother’s proposals for the children. Although she pressed for orders that the children live with her and that they spend only supervised time with the father, she formerly adopted a contradictory position. In her first Response filed in February 2013 she proposed that the children live with the father. When she conferred with the Family Consultant in June 2013 she proposed that the children live with the father, but alternatively with her.[70]
[70] Family Report, paras 28, 63
Secondly, although the paternal grandmother proposed in her current Response a permanent injunction requiring her supervision of any time spent by the children with the father, the proposal was antithetical to her oral evidence. She said it was not necessary for the children to be supervised with the father and it should not be required. She envisaged the children would spend unsupervised time with the father each alternate weekend and during school holidays.
Thirdly, the paternal grandmother revealed she believes the youngest child actually wants to live with the father. She said the child was “very close to her dad” and that “the father gives her comfort”.
Fourthly, the paternal grandmother said in cross-examination the father was “no risk of harm to the children at all because he has never done anything to them”. Clearly she only conceptualises harm in physical terms and has no appreciation to the psychological harm the father is liable to cause the children.
Fifthly, the paternal great grandmother lives in Sydney and is quite ill. She needs a carer. Her care has been shared by the father and paternal grandmother. The paternal grandmother expected that either she or the father would need to move to Sydney to care for the paternal great grandmother.
Lastly, the mother believes the paternal grandmother is unable to “stand up” to the father or resist his demands to have unsupervised time with the youngest child. She believes the paternal grandmother “does exactly what [the father] tells her to do”.[71]
[71] Family Report, paras 30, 72
In aggregation, those pieces of evidence invite an inference that, if final orders were made for the children to live with the paternal grandmother, she would either turn the children over to the father’s care and return to Sydney to care for her own mother, or alternatively, ignore any permanent injunction requiring her supervision of the children when spending time with the father.
The paternal grandmother seemed to have only the most superficial understanding of the third child’s physical and intellectual limitations. When asked to describe them, the paternal grandmother said the third child had “a little bit of cerebral palsy” and “a little bit of blindness”. She did not know the identities of the doctors and other organisations by whom he was provided care. She said she would find out more about the third child if he came to live with her. The paternal grandmother said much the same thing to the Family Consultant.[72] The Family Consultant was correct to observe:[73]
…the father and paternal grandmother would appear to have little understanding of [the third child’s] current developmental status and of the measures that are in place to assist him to achieve his full potential.
[72] Family Report, para 62
[73] Family Report, para 109

Other considerations

Aside from comparison of the parties’ respective parenting capacity, two other features of the evidence proved there was no feasible option but for the third child to remain living with the mother.

Firstly, the third child could not cope emotionally with any change of residence. I accept the Family Consultant’s evidence of his inability to cope and his likely regression[74] in preference to the father’s facile assessment that the child would “get used to” the emotional wrench of moving away from the mother. The paternal grandmother had no real appreciation of the emotional significance for the third child to live with her instead of the mother either. She said she was “not quite sure” how he would react. She thought he “might whinge a bit for the first day and be fine after that”. The third child’s emotional stability is firmly rooted in the dependable and committed care he receives from the maternal family and the various external agencies they have garnered.
[74] Family Report, para 109
Secondly, neither the father nor paternal grandmother has the physical capacity to care for the third child. The Family Consultant described the third child as having a “solid build” and “starting to enter adolescence”. A “substantial amount of physical effort” is required to manage his needs.[75] The mother and maternal grandfather presently manage that effort between them.
[75] Family Report, para 110
The father and paternal grandmother did nothing to dispel the Family Consultant’s doubts about their ability to physically manage the third child.[76] They are both disability pensioners. The father has been in receipt of a disability pension since 2006 because of his back injury, which injury prevents him from working, prevents him from lifting heavy weights, and only allows him to stand for five minutes at a time. The father conceded in cross-examination he did not know if he could cope with the third child’s physical demands. The paternal grandmother admitted she formerly filed an affidavit in the proceedings in February 2013 in which she deposed she could not physically care for the third child because of her age and his disabilities, but in cross-examination she said that evidence was incorrect. She did not reasonably explain why her earlier evidence was incorrect. She just blithely said the third child was “no trouble”.
[76] Family Report, para 110
Since the two youngest children have lived in different places for over two years, the retention of their existing sibling bonds was a salient issue in the proceedings. The sibling relationships are very important as they are likely to endure for longer than any other relationships in their lives.
The youngest child clearly adores her siblings. The Family Consultant observed her to be “very affectionate” towards the third child,[77] and found the youngest child and her two older sisters to be attentive and loving.[78] Similarly, the third child is “very close to his siblings and shares a room with [his older sister]” in the mother’s home.[79]
[77] Family Report, para 118
[78] Family Report, paras 121-123
[79] Family Report, para 109
The father acknowledged in cross-examination that the youngest child loved the third child, and further, that generally it is important for siblings to live together. The paternal grandmother also conceded in cross-examination the youngest child should live with her siblings, save for the danger she believed was posed by Mr H.
The third child’s best interests are undoubtedly served by his continued residence with the mother. If the youngest child also lives with the mother her sibling relationships will flourish and she will derive great benefit from them. On the other hand, if the youngest child lives with either the father or paternal grandmother the reality is her sibling relationships will probably wither. The two eldest children are estranged from the father and have been for some years, so they are unlikely to maintain much contact with members of the paternal family. The third child’s physical and intellectual limitations mean he can only spend short periods of time with the paternal family.
The youngest child told the Family Consultant she did not wish to have to choose where to live and wanted that decision made for her.[80] That is perfectly understandable because she is aware of the family conflict and she does not want the responsibility of disappointing any of the parties, since she loves them all. Each of the parties gave evidence to the effect the youngest child had privately told them she wished to live with them, which is entirely consistent with her desire to independently re-assure the parties of her love for them but not to have to make a choice between them.
[80] Family Report, paras 94, 97, 102
The evidence suggests the mother is better able to provide for the youngest child’s intellectual needs. The father claimed to be illiterate and the paternal grandmother admitted to difficulty with reading and comprehension. Neither of them has the capacity to assist the child with her education beyond the most basic standard.
There is no difficulty or expense involved in the children’s transition between the parties’ households. The father and paternal grandmother live nearby. The mother’s home is about 25 minutes drive away. The paternal grandmother is licensed and has a car. The mother and maternal grandfather are both licensed and they each have access to a car.

Conclusions and orders

The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father has engaged in family violence (s 61DA(2)). In any event, the allocation of equal shared parental responsibility would not be in the children’s best interests because of the acrimony that exists between the mother and the paternal family. Civil communication and genuine effort to compromise seems beyond them. The only viable option is for the one party to have sole parental responsibility for them.
The Court is therefore relieved of the obligation to consider certain types of residential arrangements for the children (s 65DAA).
The allocation of parental responsibility is necessarily tied to the determination of the children’s residence, since it would be absurd for their residential carer not to have parental responsibility for them.
The third child should live with the mother. He has always done so. Neither the father nor paternal grandmother could adequately substitute, either physically or emotionally, for the mother as his primary carer.
The youngest child should also live with the mother. She has a superior parenting capacity to both the father and paternal grandmother, for the reasons already discussed, but there are other advantages for the child. She would live with two of her siblings and see plenty of her oldest sister, who is a regular visitor to the mother’s household. She would also be largely insulated from the risk of harm posed by the father’s erratic behaviour.
There is no need to perpetuate the interim injunction precluding the children’s interaction with Mr H, even though the absence of such a permanent injunction will be an irritant to the father and paternal grandmother.
The paternal grandmother brazenly said in cross-examination she would not let the youngest child anywhere near Mr H, regardless of the Court’s finding about the existence of any risk he poses to the child. If she takes matters into her own hands and contravenes the Court’s orders she should understand there will be serious repercussions. The father said in cross-examination “I’ve got to do what the Courts say”. Hopefully he will be true to his word and respect the conclusion that no injunction concerning Mr H is necessary.
The most intriguing question is what arrangements should be made for the children to spend time and communicate with the father and paternal grandmother.
There is no doubt the children should spend some amount of time with them.
There is no doubt the third child cannot spend as much time with them as the youngest child, so differential arrangements must be made.
There is no doubt the children should be supervised when in the presence of the father. That is appropriate because, firstly, it was proposed by the mother and Independent Children’s Lawyer, secondly, it remained the proposal of the paternal grandmother despite her contrary evidence, thirdly, the father ultimately admitted its necessity, and lastly, the Family Consultant recommended it.
There was, however, debate about who would provide that supervision and whether the children should also be supervised when with the paternal grandmother.
Despite reservations about the paternal grandmother’s reliability as a supervisor, she should permanently supervise the children when spending time with the father. There is no need to make separate provision for the children to spend time with her because she will necessarily be present when they spend time with the father.
I reject the proposal made by the Independent Children’s Lawyer and the mother for the children and the father to be initially supervised at a contact centre, subject to compliance with a multitude of conditions. Their proposal expressly envisaged the paternal grandmother would ultimately replace the contact centre as the father’s supervisor, again on the fulfilment of other conditions.
The inherent vice of the proposal of the Independent Children’s Lawyer and mother, which imposed an array of conditions upon the manner in which the children would spend time with the father, was the assumption that the father was willing and able to acquire insight into his parenting deficiencies through the completion of a series of educational courses and therapy. The children have meaningful relationships with him already, despite his deficiencies, and it is necessary to make orders that enable retention of those relationships on condition only that their physical and psychological safety is preserved as far as circumstances reasonably allow.
The additional vice of their proposal was the need for the Court to abdicate its responsibility to make parenting orders in the best interests of the children to an unknown therapist, chosen by the father, who would be later called upon to proffer a report about whether or not the father still represents a “risk to the physical, emotional or intellectual welfare of the children”. That is an issue for the Court alone to decide. Jurisdiction and power under Part VII of the Act should be jealously guarded, not divested to a psychologist or psychiatrist.
I also reject the proposal made by the Independent Children’s Lawyer and mother for the children to spend supervised time at a contact centre with the paternal grandmother for an initial period of six months. The reasons for the imposition and then arbitrary dispensation of such formal supervision were not persuasive.
The orders provide for the youngest child to spend time with the father under the supervision of the paternal grandmother on alternate weekends (sleeping over on only one night) during school terms and for one week in each of the mid-year and Christmas school holiday periods. That amount of time and the frequency with which it occurs allows the youngest child to retain and continue deriving benefit from her meaningful relationships with both the father and paternal grandmother. The father still poses a risk of harm to the child, but her visits with him and the paternal grandmother are not so long, nor so frequent, as to render the risk unacceptably high.
Because the third child could not tolerate visits with the father and paternal grandmother of such duration, the orders provide for him to visit them in the company of the youngest child, but only for the first three hours of each visit. The mother maintained, without challenge, that the third child could only manage visits of a few hours duration with the paternal family.
The risk of harm posed by the father to the children is also attenuated by the imposition of injunctions restraining his consumption of alcohol prior to or during the visits and restraining his attendance at changeovers.
There is no utility restraining the father from the use of illicit drugs at times during or proximate to the children’s visits with him, since such use is unlawful at any time. An order restraining his use of illicit drugs only some of the time perversely implies he may use them with impunity at other times.
The children’s changeovers shall occur at a specified public venue in relative proximity to the homes of the parties. They are free to agree upon another venue if they choose. The changeover venue was not the subject of any evidence. The father proposed a different public venue, about which he was not challenged, but he will not take part in the changeovers. The paternal grandmother did not suggest a changeover venue as part of her proposal. The Independent Children’s Lawyer and mother did not propose any venue besides a contact centre, which idea is not adopted.
The father and paternal grandmother are each restrained from attending at or near the mother’s home and the children’s schools. That will prevent them circumventing the intention of the orders. The mother may provide sealed copies of the orders to the principals of the children’s schools so they are aware of the mother’s authority for the children. The orders require the mother to facilitate the father and paternal grandmother obtaining copies of the children’s school reports and school photographs if they are interested.
Orders are made for the children to communicate with the paternal grandmother and father by telephone each Wednesday and on other special occasions. So as to avoid the prospect of conflict, the mother shall establish the telephone connection for the children.
The parties are obliged to inform one another of only their email addresses and mobile telephone numbers. That will enable limited telephonic and written communication between them. The mother did not wish to divulge her address to the father and paternal grandmother and she should not be forced to do so.
The injunction restraining the parties from allowing the children to be exposed to any denigration of them could not be the subject of reasonable resistance.
The father said in cross-examination “as soon as [the youngest child] says something to me again its straight back down to the police station”. If the father or paternal grandmother believe it is necessary to report further suspected abuse of the children to the authorities for investigation then they should not be stopped. The allegations may indeed justify investigation. However, in that eventuality, the investigating authorities should have the benefit of these reasons and the opinions of the Family Consultant, which will enable the past unsubstantiated allegations to be factored into any new investigation. An order to that effect is made. Of course, the paternal family need to realise that making further allegations of child abuse without a proper basis may warrant an amendment to these parenting orders.
The Family Consultant said she would happily explain the orders and reasons to the youngest child in an age-appropriate way. An order is made requiring her to do so.
The Independent Children’s Lawyer proposed an order, to which the mother agreed, compelling the mother to submit the youngest child to psychological counselling.[81] I decline to make the order. Its purpose was not specified, it was not raised in the evidence, and it was not addressed in submissions. The mother was invested with sole parental responsibility for the child with the concurrence of the Independent Children’s Lawyer. The submission of the child to counselling is a decision within the ambit of her exercise of parental responsibility.
[81] Exhibit ICL1, Order 15

I certify that the preceding one hundred and eighty six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 4 April 2014.

Associate:

Date: 4 April 2014

[2014] FamCA 218

4 April 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Injunction

Procedural Fairness

Jurisdiction