Family Court of Australia Carter and Nussbaum & Ors
[2013] FamCA 990
•18 December 2013
FAMILY COURT OF AUSTRALIA
| CARTER & NUSSBAUM AND ORS | [2013] FamCA 990 |
| FAMILY LAW – CHILDREN – With whom a child lives – with whom a child communicates – with whom a child spends time – allegations of family violence – allegations of sexual abuse – whether children at unacceptable risk in unsupervised care of the father – question of mother’s ability to parent the children – order that children live with paternal grandparents – order that children spend time with mother – finding that children not at unacceptable risk in unsupervised care of the father. |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A), |
| MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424 |
| APPLICANT: | Ms Carter |
| 1st RESPONDENT: | Ms Nussbaum |
| 2nd RESPONDENT: | Mr Nussbaum Snr |
| 3rd RESPONDENT: INDEPENDENT CHILDREN’S | Mr Nussbaum |
| FILE NUMBER: | MLC | 6001 | of | 2010 |
| DATE DELIVERED: | 18 December 2013 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 28, 29, 30, 31 October & 1 November |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Coombe |
| SOLICITOR FOR THE 1ST RESPONDENT: | Perisic Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Coombe |
| SOLICITOR FOR THE 2ND RESPONDENT: | Perisic Lawyers |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Dunlop | |
SOLICITOR FOR THE 3RD RESPONDENT: | Whyte Just & Moore | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hutchins (Day 1) Mr Lovering Mc Kean Park Lawyers | |
Orders
All prior parenting orders with respect to T Nussbaum (born … 2005), X Nussbaum (born … 2009) and C Nussbaum (born … 2011) (“the children”) are discharged.
SUBJECT TO THESE ORDERS the children’s Paternal Grandparents, Ms Nussbaum and Mr Nussbaum Snr (“the Paternal Grandparents”) together with the children’s Father, Mr Nussbaum (“the Father”) shall have parental responsibility for and of the children, subject to the following:-
(a)The Paternal Grandparents and/or the Father shall not exercise major long-term aspects of parental responsibility in respect of the children (except in an emergency) unless and until:-
i.the Mother has been informed in writing (by mail, email or text) of the details of the proposed decision and the reasons it is being made or contemplated;
ii.the Mother’s views and opinions are sought;
iii.the views and opinions of the Mother are considered by reference to the best interests of the child or children; and
iv.When any such decision is made the Mother is promptly advised of that decision, in advance if reasonably possible and if not then as soon as is reasonably practicable.
In the exercise of parental responsibility the Paternal Grandparents and Father shall not relocate the permanent residence of the children more than thirty (30) kilometres from their current address or change the names of the children without first obtaining written consent of the Mother or a further order of a court exercising jurisdiction under the Family Law Act1975 (Cth).
If the Paternal Grandparents determine that the children or any one of them shall attend extracurricular activities on weekends when they would otherwise spend time with the mother, the grandparents shall:-
(a)engage with the mother as provided in these orders in exercising parental responsibility;
(b)attend a Family Relationships Centre, if the parties are unable to agree, with a view to negotiating in respect of that determination, the ultimate decision eventually remaining with the paternal grandparents pursuant to these orders;
(c)If those events are during times that the mother has the care of the children, if reasonably possible the mother shall ensure that the children attend those activities;
(d)in putting those activities in place the grandparents must have regard to the circumstances that the mother has the care of the three children.
The Mother shall have parental responsibility to confer with and speak to (but not instruct) the children’s health care professionals, school and/or day care staff in relation to the health, welfare and development of the children.
The children shall live with the Paternal Grandmother and Paternal Grandfather.
The children will spend time and communicate with the Father as is arranged between the Father and the Paternal Grandparents but in circumstances not as to unreasonably interfere with the time the children spend or how the children communicate with the Mother in accordance with these orders or in accordance with any subsequent agreement between the Paternal Grandparents, the Father and the Mother.
The children shall spend time with the Mother as agreed in writing between her and the Paternal Grandparents, and in the event that there is no agreement then such time shall be as follows:-
(a) During school term - each alternate week from 5.00pm Saturday to 5.00pm Sunday. Initially to commence the first weekend after the date of these orders and thereafter to commence the first week after the start of each school term.
(b) For the years 2013 and 2014 – for the first five days of the three Victorian mid-year school holiday periods from 5.00pm on the first Saturday to 5.00pm on the following Thursday.
(c) For the year 2015 and onwards - for the first seven day of the three Victorian mid-year school holiday periods from 5.00pm Saturday until 5.00pm the following Saturday.
(d) As to Christmas Day:-
a. from 4.00pm on Christmas Eve until 4.00pm on Christmas Day from December 2013 and each alternate year afterwards, and
b. from 4.00pm on Christmas Day until 4.00pm on 26 December 2014 and each alternate year afterwards.
(e) For the 2013/2014 and 2014/2015 Christmas/New Year school holiday periods - for five days in each alternate week of such holidays;
a. commencing the last Saturday before New Year in the 2013/2014 school holiday period;
b. commencing the first Saturday after 1 January 2015 in the 2014/2015 school holiday period;
c. such time for those alternate weeks to be from 5pm Saturday until 5.00pm the following Thursday; and
d. such times to conclude at least four days before the commencement of school term.
(f) For the 2014/2015 and following Christmas/New Year school holiday periods - for alternate weeks;
a. commencing the first Saturday after 26 December in 2015 (in the 2015/2016 school holiday period) and each alternate year:
b. the first Saturday after New Year in 2017 (in the 2016/2017 school holiday period) and each alternate year afterwards:
c. such time to be from 5pm Saturday until 5pm the following Saturday: and
d. such times to conclude at least four days before the commencement of school term.
(g) On Mother’s Day of each year from 9.00am to 5.00pm.
(h) If the children are to otherwise spend time with the Mother on Father’s Day, such time with the Mother is to be suspended from 9.00 am on Father’s Day.
(i) On each of the children’s birthday and the birthday of their sister B at times agreed and in default of agreement for no less than three hours commencing at 3.30pm.
All changeovers are to occur at Y Children’s Contact Service, Geelong or if that service is closed or not available then at the McDonalds Family Restaurant closest to the Paternal Grandparents’ home or such other place as is agreed in writing between the Mother and Paternal Grandparents.
If the children are to attend extracurricular activities during times that the mother has the care of them, if reasonably possible, the mother shall ensure that the children attend those activities
The Mother, Father and Paternal Grandparents shall:-
(a)keep the other parties advised of his, her or their residential address, email address, mobile and land line telephone numbers and that information in respect of the children; and
(b)if reasonably practicable, inform the other parties (in writing by letter, email or text message) in advance of any change of such details, and if not reasonably practicable then they shall notify such other parties within seven days of any such change.
All parties are at liberty to participate at school, kindergarten and other extra-curricular activities in relation to the children.
The parties shall not denigrate, demean belittle or abuse the other party or parties or members of their family in the presence or hearing of the children or any one or other of them.
The parties shall ensure that the children are treated by their paediatrician, Dr S, or such other paediatrician as is identified pursuant to this order and further that the parties shall:-
(a)have the children visit their paediatrician as is reasonably recommended by that medical practitioner;
(b)accept and act on the reasonable recommendations of such paediatrician, including speech therapy treatment; and
(c)in the event that Dr S is unable or unwilling to continue as the children’s paediatrician, accept her recommendation and that of her successor as to his or her replacement.
BY CONSENT each of the parties are restrained from bringing the children into contact with Mr D.
THE COURT NOTES that the Paternal Grandparents presently pay private school and kindergarten fees and are proposing to continue to do so in the future.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All other extant applications for orders (except costs applications) be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).
Following the expiration of the appeal period, all subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children’s Lawyer shall forward to Dr S within twenty one days a copy of each of the following:-
(a)These orders.
(b)The reasons upon which these orders are based; and
(c)The family report of Dr P (18 October 2013).
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Nussbaum and Ors 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 HOBART |
FILE NUMBER: MLC 6001 of 2010
| Ms Carter |
Applicant
And
| Ms Nussbaum First respondent And Mr Nussbaum Snr Second respondent And Mr Nussbaum Third respondent And |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
The children T, aged eight, X, aged four and C, aged two have been involved in Family Law litigation in one form or another for almost all of their lives, except in the case of C who has been the subject of litigation for the whole of her life. These three children have lived primarily with Ms Nussbaum (‘the paternal grandmother’) and Mr Nussbaum Snr (‘the paternal grandfather’) since mid-2012.
In June 2012, after a hearing in the Federal Magistrates Court (as it then was) in Melbourne, consent orders were made, on an interim basis, that the children would live with the paternal grandparents.
The parties agreed that a consent order ought to be made restraining them from bringing the children into contact with the mother’s brother, Mr D, given the evidence of his past history.
After the conclusion of evidence the mother tendered a document setting out the orders she sought[1], the outline of which was that:-
(a)all parties share parental responsibility, but that the mother and paternal grandfather make parenting decisions in respect of the children.
(b)the children live with the paternal grandparents.
(c)the children spend supervised time with their father (who is living with the paternal grandparents and the children).
(d)the children live with her each alternate weekend from 3.00pm Friday to 3.00pm Monday (rather than equal time as she had initially indicated), half of the Victorian school holiday periods (including week about over Christmas/New Year Holiday period), Christmas Day, Mother’s Day, the children’s birthdays, her birthday each year and that of the children’s sister J plus other times as agreed.
[1] Exhibit M 5- the orders sought by the mother are contained in a handwritten note by her.
In addition the mother sought other orders including:-
(a)health issues and treatment and supervision by a paediatrician and speech therapist (which orders I have made but in a different form having regard to the determination as to parental responsibility);
(b)private school fees to be paid by the paternal grandparents (which I did not make as it was ultra vires the power of the Court but which agreement I noted);
(c)orders to ensure the children attend school and kindergarten (I did not make that order as on the evidence that was happening without too much trouble and any change would be covered by the orders I made as to parental responsibility):
(d)that the parties keep each other informed of their contact details (which order was not contentious and as such I made); and
(e)to maintain a relationship with the mother’s family.
The mother changed her approach in terms of time in her closing submissions,[2] she said:-
I would also like to advise what I meant by item 2 of my orders is that if the court sees fit I would like 50/50 shared care arrangement on a week about basis after the initial increased time with me from 3pm Friday to 3pm Monday for 3 months. I was rushed at lunch time writing out these orders and accidently left this out.
[2] Exhibit M 6 – mothers closing submissions at paragraph 4 (pages 1 and 2).
I have treated that later submission as the mother’s final position. I considered the mother’s position in the context of the submissions made by the Independent Children's Lawyer, the father and paternal grandparents at the conclusion of evidence and that they oppose the expanded equal time sought by the mother.
The paternal grandparents initially sought orders that they and the father have parental responsibility for the children and that the mother spends time with the children on an alternate weekend basis plus school holidays and the like.[3] Their position regarding time changed markedly during the hearing and at the conclusion of evidence they sought an order that the children spend time with the mother for five hours on every third Sunday (with a limited overnight alternative) plus limited other time.[4]
[3] Paternal grandparents case outline filed in court on day one.
[4] ‘Orders sought by paternal grandparents’ a handwritten document PG.
The father supported the orders sought by his parents and adopted their submission.
The Independent Children's Lawyer sought orders set out in his case outline, excluding supervision of the father when he was with the children.[5] These orders were less than those sought by the mother but more than those sought by the paternal grandparents. Those orders, with some refinement, were the ones made by this Court.
[5] Exhibit ICL4 - List of Orders.
The position of the Independent Children’s Lawyer was initially as follows:-
(a)that the paternal grandparents and father have sole parental responsibility (subject to the limitations with regard to change of name, relocation etc.).
(b)that the children live with the paternal grandparents.
(c)that the children spend time with the father as arranged between the paternal grandparents and the father but that there be a responsible person (other than the father) being in substantial attendance. Initially the Independent Children’s Lawyer sought more time each alternate weekend as recommended by the Family Consultant. However, with the evidence of the Family Consultant that view changed and there were discussions between the bench, the mother and counsel for the parties and the Independent Children’s Lawyer about each weekend from 5.00pm Saturday to 5.00pm Sunday. That was the Independent Children’s Lawyer’s further position.
The Independent Children’s Lawyer substantially agreed with the children spending time with the mother during school holidays, Christmas Day, Mother’s Day and special occasions.
THE ISSUES
Whether the children were at unacceptable risk of sexual abuse in the unsupervised care of the father, as alleged by the mother. To that end the mother seeks an order that the father vacate his parents’ home, although this seems to also involve the mother’s view that the father should stand on his own feet.
Whether the mother has engaged in an ongoing pattern of systems abuse of the children in terms of her complaints about the father and paternal grandparents.
The mother’s ability to parent the children.
The special needs of the children.
The relationship between the mother and paternal grandparents.
The capacity of the paternal grandparents to parent the children, given their age and health and the rigid approach to parenting exhibited by the paternal grandmother in particular.
The determinations include:-
(a)Parental responsibility;
(b)Residence;
(c)Communication and time between the children and the mother if her primary application is not successful; and
(d)Whether the father’s time with the children should be supervised. Although, it seems that the mother’s application in this respect is not pressed, but having regard to the complaints she makes about the father, I have considered this to be an issue, as well as the question of whether the father ought to be restrained from living at the home of his parents.
BACKGROUND
The background is taken from the chronology provided in the outline of case filed by the grandparents. I invited the parties to consider that chronology in relation to the history of the parties and tell me if there were any issues in respect of that outline. No issues were raised.
The paternal grandfather is aged 73. The paternal grandmother is 68. The mother is aged 38 and the father is aged 40.
There are the three children of the relationship to whom I have referred to earlier, T, X and C.
In August 2007 orders were made that T live with the mother and spend time with the father each alternate week for a period of two hours at a Children’s Contact Service.
In July 2010 the paternal grandparents issued proceedings and orders were made in August 2010 that the children live with the mother and spend time with the paternal grandparents each alternate Friday and each alternate weekend.
Between August 2010 and November 2010 the paternal grandparents asserted that the mother failed to make the children available pursuant to the Court orders. Further, a report had been made to police that the father had sexually assaulted T.
Further contravention applications were filed in September/October 2010 and in November 2010 interim orders were made by consent, and the contravention applications were withdrawn and make up time was ordered.
Between November 2010 and February 2011 T and X spent significant amount of time at the grandparents’ home.
In early 2011 C was born.
In February 2011 the mother applied for a recovery order with regard to X and orders were made in the Federal Magistrates Court (as it was then known).
Between February, March and April 2011 the paternal grandparents assert that their time with the children was reduced, as the mother had been in and out of hospital over that period.
A family report had been ordered and the Family Consultant released that report in May 2011.
In June 2011 an Independent Children’s Lawyer was appointed.
In August 2011:-
(a)There was an application for an intervention order on behalf of the mother asserting child abuse.
(b)The child C was hospitalised for febrile convulsions.
(c)The mother made (and then withdrew allegations) to Victoria Police asserting that the father had sexually abused her and had abused the children. The father was not formerly interviewed.
(d)The police made, then withdrew, an intervention order application against the father.
(e)The mother made her own application for an intervention order.
On 19 September 2011 orders were made (by consent) by a Federal Magistrate (as she then was) which provided that the children live with the paternal grandparents and the mother in a shared care arrangement.
In November 2011 the mother applied for an ex parte interim intervention order against the father and withheld the children from spending time with the paternal grandparents.
In December 2011 the intervention applications were struck out and the time with the children was restored.
In December 2011 the mother withheld the children from spending time with the paternal grandparents. The father applied for an intervention order and on 20 January 2012 the mother withheld the child C until late March 2012.
In March 2012 the mother applied for an intervention order against the paternal grandmother at the local State Magistrates Court. This application was subsequently withdrawn in May of 2012.
Proceedings continued in the Federal Magistrates Court (as it then was) and interim orders were made in June 2012 and the proceedings were transferred to the Family Court.
The children subject to these proceedings have special needs. Dr P observed (and was not challenged) that T has a mild intellectual disability and that all three children had experienced significant developmental delay; particularly speech, language and gastrointestinal issues. T and X’s language delays were such that they qualified for early intervention although C’s is mild.
The mother complained in her submissions that there was an imbalance of power saying:-[6]
Firstly, I would like to point out the obvious power imbalance of this trial. I acknowledge Your Honour was extremely generous in time and patience but the fact remains I did not have access to legal advice throughout this trial and I struggled with understanding the process of the Court which took away my ability to present my position clearly. This also made it hard for me to get documents by Subpoena for instance, as I did not know I could or should appeal to your Honour on those items. The other parties had access to a large legal team that were working hand in hand against me. The evidence of Dr U’s comprehensive report was relied on throughout the proceedings. His report stated that I have an I.Q of 78 which is below average.
[6] Exhibit M6 – of the Mother’s Closing Submissions dated 13 November 2013 – paragraph 3.
I accept that the mother was under a disadvantage in not being represented and as such needed to be both an advocate and party. However, the Independent Children's Lawyer provided regular assistant to the mother and the Court provided time and documents. When she was to cross-examine the father in the light of her then untested allegations, she was given time to prepare written questions and they were asked by me. The mother was given the opportunity to cross-examine last and make written submission after the Independent Children's Lawyer and other parties had finished their partly written and partly oral submissions.
The process of the hearing was explained to her and she was reminded of them from time to time. She was given access to material on subpoena and there was a break in the middle of the hearing of some five days. The mother had assistance from family. Issues of time and material raised by her with the Court were treated courteously and sympathetically. The mother was informed that if she had concerns about the process she should raise those with me. The mother took advantage of that offer on a number of occasions during the hearing.
There was an issue about the mother’s intellectual capacity and the Court, as best it could, took steps to ensure procedural fairness. The mother herself took steps to seek assistance to understand the issues and processes as can be demonstrated by her extensive written submissions made the week following the end of the evidence.
In these proceedings the parties tendered the orders they sought, with the exception of the father who supported the orders sought by his parents. These documents are now exhibits.
In these proceedings the parties also made written submissions. Counsel for the father made written submissions.
In these proceedings any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the contest.
THE LAW
When determining orders the Court’s approach is governed by Part VII of the Family Law Act 1975 (Cth) (‘the Act”). The objects of Part VII of the Act and the principles underlying them are set out in s 60B.
Subject to the presumption of equal parenting under s 61DA and any parenting plans (there are none in this case) a Court exercising jurisdiction under the Act may make such parenting order as it considered appropriate.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made, and in determining those interests the Court must consider the factors set out in s 60CC of the Act.
If a court makes an order for equal shared parental responsibility, it must first consider the children spending equal time with each parent, and if such an order is not to be made, then the Court must then consider the children spending substantial and significant time with each parent. In addition the Court must consider whether such an arrangement would be in the children's best interests and then consider whether such an arrangement is reasonably practicable. If the Court is satisfied on those matters, the Court must consider making such an order (s 65DAA(1)(c) and (2)(e), and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
These proceedings were commenced before 7 June 2012, and as a consequence the amendments to the definition of “family violence” in s 4(1) of the Act, and to ss 60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply.
EVIDENCE
Dr P
Dr P is a family consultant employed by the Family Court in Melbourne. She prepared a report dated 18 October 2013 which was admitted into evidence (subject to weight).[7] The qualifications of Dr P were not put in issue.
[7] Exhibit ICL1.
In her report Dr P made the following recommendations:-[8]
[8] Exhibit ICL1- paragraph 100.
Based on the available information and in the absence of evidence to the contrary, it is respectfully submitted that
(a)[The paternal grandparents and the father] share parental responsibility for the children;
(b)The children live with the paternal grandparents and spend time with the mother each alternate weekend from 5pm Friday to 5pm Sunday, week-about during school holidays and on significant events (e.g., birthdays, Mother’s Day, Easter and Christmas);
(c)If the Court determines that the father does not pose an unacceptable risk to the children, that he spend time with the children as agreed between the father and the paternal grandparents;
(d)If the Court determines that the father does pose an unacceptable risk to the children, that he spend time with the children under the supervision of either [the paternal grandfather or the paternal grandmother] and be restrained from spending overnight time at the residence of the paternal grandparents; and
(e)Each of the parties be restrained from bringing the children into contact with Mr [D], or allowing anyone else to do so.
(f)That the Department of Human Services be provided with a copy of this report.
When cross-examined by counsel for the grandparents, Dr P said that time ought to be reduced (from alternate weekends) if the Court was satisfied there were concerns about the mother’s ability to cope with the children or enable the children to attend various activities.
Dr P then gave evidence that if there was a concern in that regard the children should still have a relationship with the mother, however it may be better for the children to see the mother every weekend rather than alternate weekends but for shorter periods of time.
Dr P noted that the children have a close relationship with their care givers and siblings, and X showed a clear preference for the paternal grandmother.
Dr P said that the children needed a stable environment and the mother’s significant moves would have impacted adversely on the stability that the children need. From enquiries Dr P made, it appears that T has improved at school.
Dr P gave evidence as to the positive nature of the parenting provided by the paternal grandparents. She noted[9] that there were disclosures to the Department of Health and Human Services about the grandparents’ care of the children which elicited an unannounced check. She further noted that the Department was satisfied that all was well with the children in the care of the paternal grandparents.
[9] At paragraph 28 of Family Report dated 18 October 2013.
Dr P was concerned that if the mother had said to the children in 2012 that they would be with her, this reflected on lack of insight and understanding on the part of the mother in respect of the needs of the children.
Dr P’s view of the paternal grandparents was that they put the children’s best interests first. However, Dr P said the mother struggles to share parental responsibility with the paternal grandparents. In terms of parental responsibility, Dr P was concerned that if it were joint it could be dangerous and fraught with difficulties for the children with respect to any consistent information being given to health professionals, the likelihood of over servicing and the confusion with the family. I accept that evidence.
Dr P was of the view that the paternal grandmother was aware and managing the developmental issues with regard to the children and that she was observant of those issues.
Dr P went further and set out at paragraph 98 of her report:-[10]
The children have been subject to a long history of instability in their care arrangements and the ongoing stress of litigation between their parents ostensibly since birth. It is in their interests that a final arrangement be devised that will minimise the risk of future disruptions in their care and the likelihood of future proceedings being issued in their names. It is of note that since the change of primary care in March 2012 there has been very limited Court activity and relative stability for the children, including undisrupted relationships with both parents and their paternal grandparents. If [the paternal grandmother’s] account is supported by the relevant professionals, it would seem the children have made significant developmental gains during this period, which would speak to the positive impact of this arrangement.
[10] Exhibit ICL1- paragraph 98.
The mother cross-examined Dr P and asked her if she relied upon information provided by Ms R of the Department of Health, Victoria. Dr P said that in her enquiries made of Ms R and (implicitly) the records provided by the Department, that she (Ms R) had been involved with the children for some time and had good recollection of material. Dr P said she placed considerable weight on that material.
Dr P went on to say that the paternal grandmother had a good understanding of the children’s special needs and takes responsibility for parenting tasks. The father and paternal grandfather take their leads from the paternal grandmother and that without the paternal grandmother, all of the other parties, the father, the mother and the paternal grandfather would have difficulty caring for the children.
The mother was not particularly critical of Dr P, except to the extent that she relied upon information provided by Ms R and the child protection authorities.
The Independent Children's Lawyer submitted that Dr P’s evidence, both oral and written were credible, well thought out, and as such should be given considerable weight.
I accept the Independent Children's Lawyer’s submission and I accept Dr P’s frank and careful evidence. I have given considerable weight to it.
Mr U
Mr U is a certified Forensic Psychologist who has been treating the mother since January 2013. His evidence was provided to the Court in two forms. His affidavit filed 16 May 2013 (sworn 15 May 2013) annexed to which was his report of 6 May 2013. This report was read into evidence without controversy. The mother tendered a letter from Mr U dated 29 October 2013.[11] That letter was read into evidence without controversy. The letter mainly related to the state of the mother’s home and Mr U’s examination of the home. On that evidence it seems that at the time of his inspection the home was well maintained, in good order and suitable for the children to stay there.
[11] Exhibit M1.
The evidence of Mr U in relation to the mother was that he has a different view in relation to the psychological assessment of the mother as set out in Dr K’s report of 28 September 2012. Mr U is of the view that the mother’s actual level of intellectual functioning is higher than that indicated in the material provided by Dr K.
As Mr U’s report was admitted into evidence I am satisfied, on balance, that the mother has a general intellectual function obtained on the Wechsler Adult Intelligence Scale, which though higher than that of the different test undertaken by Dr K, is still low. Mr U took a step too far when he concluded that “there is no reason to suggest [the mother] is not able to provide at least adequate care for her [children]”.[12] There is no evidence that this conclusion was based upon his observations of the mother with the children or having broader information about the mother’s circumstances. I give that later conclusion little weight.
[12] At page 10 of Mr U’s Report dated 6 May 2013.
It was submitted by counsel for the paternal grandparents that the Court ought to be concerned about Mr U’s silence as to the mother’s ability to care for the children. I do not accept that submission, given the mother was self-represented.
The Mother
The mother gave evidence in accordance with her affidavits filed as follows:-
·Affidavit filed 3 November 2010 sworn 29 October 2010;
·Affidavit filed 19 September 2011 sworn 15 September 2011;
·Affidavit filed 19 September 2011 sworn 16 November 2011;
·Affidavit filed 4 April 2012 sworn 27 March 2012;
·Affidavit – non filing of dispute resolution certificate filed and sworn 4 April 2012;
·Affidavit filed and sworn 13 April 2012;
·Affidavit filed and sworn 30 August 2013; and
·Affidavit filed and sworn 21 October 2013.
The mother deposed that the contents of these affidavits were true and correct. The mother was an unsatisfactory witness whose evidence was often unreliable.
The mother was cross-examined as to whether, if the orders were equal time, she would come back to the Court, she said that she wants equal time and is not proposing to seek more time. Yet that evidence is different to her asserted view in her affidavit filed and sworn 30 August 2013[13] where the mother asked for orders that the children “reside with [the mother] full time …”. This was an example of the mother’s inconsistent evidence.
[13] At paragraph 18.
The mother was cross-examined about her relationship with the paternal grandparents (in particular the paternal grandmother) and at times spoke positively about them and their parenting. At other times the mother was scathing of their parenting. Her answers seemed to depend upon the context in which the questions were asked. In her affidavits her views of the paternal grandparents ranged from them being helpful and supportive to people who were stealing her children.
The mother was asked about the medical appointments at medical practitioners. In her evidence the mother blamed others for the conflict at those appointments, and she takes little or no responsibility for her part. That evidence is different to that of the paternal grandparents and Dr S. The mother participated in the conflict and has little insight into her part in exposing the children to that adult conflict.
The mother complained about the paternal grandmother not making a child’s uniform available and asserted that the paternal grandmother then endeavoured to ‘blackmail’ the mother in relation to time with the children. Yet when a letter was shown about the arrangements (sent in advance) it was quite benign. The mother seems to have the tendency to amplify events to suit her particular needs.
In these Reasons I have considered the various allegations of sexual abuse and violence. I have been critical of the mother in relation to that evidence, at times her evidence was inconsistent with the various views she gave of events and timing of events and what was said. An example of this was in relation to the alleged sexual assault upon her in July 2011 which was not reported to the police. Her assertions that there were three events where she was punched by the father in July/August 2011 as set out in her affidavits, her evidence by the way it was given and the changing nature of it in cross examination was inherently implausible.
The mother’s evidence that she had no recollection of her brother’s sexual assault conviction in respect of the mother’s elder child is likewise inherently unlikely. The mother said she needed to be reminded of these events and then was reluctant to take any adequate protective measures in relation to the child.
The mother initially permitted the paternal grandmother to attend and visit her after the birth of C but within a short time she, or someone on her behalf, terminated the paternal grandmother visits. The paternal grandmother was then implicitly criticised for not visiting the mother.
The mother asserted to Dr P that her eldest child had completed her VCE with a score of 90. The mother provided evidence that the elder child had been home schooled and did not complete her VCE.
The mother’s evidence about her father’s gambling habits (which was in essence a minor issue) was troubling. At times she denied he was a gambler and at other times she acknowledged that he did gamble, but it was in the past. Her evidence in that regard was unreliable.
Counsel for the paternal grandparents submitted that the mother’s evidence was contradictory. Given the evidence, I accept that submission.
The Independent Children's Lawyer submitted:-[14]
The evidence of the mother was inconsistent and was not supported by the independent evidence. The mother struggled to recall events accurately unless they supported her case. The mother believed that Ms [R] from DHS had taken a view against the mother and had preferred the paternal grandparent’s view of events rather than the mother.
The mother was somewhat confused in her evidence regarding her brother [Mr D]. She gave evidence that she was aware that [Mr D’s] sexual offending involved [J] but later sought to cross-examine Ms [R] from DHS saying that the offending did not involve [Mr D].
The mother agreed that the children’s behaviour had improved since they had been residing in the primary care of the grandparents but she did not concede that that was the reason for the improvement.
[14] Exhibit ICL 8 - Independent Children’s Lawyer’s Closing Submissions dated 18 April 2013 – page 6.
I accept and adopt that submission. The mother’s evidence was confused, unreliable and at times had a sense of reconstruction and fabrication.
Mrs W
Mrs W is the mother’s cousin and has been assisting the mother for a number of years. The mother relied upon two affidavits of Mrs W, one filed and sworn 13 April 2012 and the other filed and sworn on 21 October 2013.
Mrs W is a family violence case manager and has a clear understanding of family violence. She is married and lives about two hours away from the mother’s home and has two teenage children. Parts of Mrs W’s affidavits were excluded as hearsay.
Mrs W has had only a few meetings with the father and has formed her adverse view of him from what she has heard from the mother.
Mrs W gave evidence of a terrible changeover involving the children on 18 March 2012. She provided her statement to the police and had subsequently sought a personal safety order against the paternal grandmother.
What happened on that day was that the children were to go into the care of the mother. The paternal grandparents brought the children to the changeover place. Mrs W and her mother arrived at the changeover without the mother.
About a fortnight before that there had been a dispute between the paternal grandparents and J (the mother’s elder child) in relation to a changeover where the mother was not present. Mrs W was aware of this.
At the time of this changeover, the mother was in hospital and unable to collect the children. No notice of this had been given to the paternal grandparents. There are different accounts as to what happened. Clearly it was confrontational and stressful for the children.
Mrs W entirely blamed the paternal grandparents. However, Mrs W endeavoured to take the children despite the opposition of the paternal grandparents. This included inviting T to leave the car and the paternal grandparents who in turn were encouraging T to get back in their car and locking the door. It is apparent that T said to Mrs W and her mother ‘not to hurt my nanna’ or similar words. Mrs W endeavoured to remove X from a back seat.
This was an unsatisfactory incident and it was terrifying for the children. Neither Mrs W nor the paternal grandparents should take any credit from this event.
At any time Mrs W could have taken a step back and walked away. She did not do so and continued to inflame and escalate an already difficult circumstance. Of all the people at that time and at that place (given her experience and training) Mrs W ought to have known better. In many ways it is an example of her subjective and somewhat blinkered approach to this dispute.
In her affidavits Mrs W complained that the paternal grandmother did not visit and was only at the hospital on one occasion after C was born. Mrs W was likely to have been aware that the paternal grandmother had been removed from the list of people who could attend. Her answer, when pressed on this point, amounted to prevarication. Mrs W’s explanation of her reason for putting in the complaint about the paternal grandmother not visiting was, in the circumstances, unconvincing.
With the mother’s permission Mrs W took C home from hospital and C remained with Mrs W for about twelve days. This was a kind and appropriate gesture on Mrs W’s part. However, no endeavour was made by Mrs W to inform the paternal grandmother of C’s whereabouts, or to introduce C to her siblings or more importantly vice versa.
After the events on 18 March 2012 Mrs W applied for a family violence order. She was told she could not include the children in that order and therefore arranged for it to be issued and a return date was put in place. Mrs W then arranged for a second intervention order to be applied for in another court, returnable for the same day but at a different court.
I have doubts about the veracity of Mrs W’s response in relation to the requirement of the paternal grandparents attending two courts on the same day but in different geographic areas of Melbourne.
Mrs W was scathing in her criticism of Ms R of the Department of Human Services and said her evidence was untruthful. Mrs W was of the view that Ms R was not well trained and was opinionated.
On the limited opportunity I had to see Ms R she did not fall into that category. It may well be that such was Mrs W’s alignment with the mother, that she saw Ms W through the prism of the mother’s case.
Counsel for the paternal grandparents submitted, and I accept, that:-[15]
Ms [W] formed the view that the paternal grandmother was perpetrating family violence against the mother and continues to do so. Her position was entrenched and her unqualified acceptance of the mother’s position was unfailing, despite contrary evidence. Her negative views in relation to the [paternal grandparents] appear unabated and this is of significant concern in relation to the fact that she appears to be the only support for the mother at this time. …
Exhibit PG6 - Paternal Grandparents Closing Submissions undated – page 5.[15]
Mrs W’s evidence was diminished by reason of her strong alignment with the mother and her engagement and participation in the conflict. As such I will treat her evidence with caution.
Mrs M
Mrs M is the mother’s maternal aunt. The mother relied on three affidavits of Mrs M, being those filed 13 April 2012, 8 May 2012 and 19 September 2011.
Mrs M’s September 2011 affidavit was of a ‘cheer squad’ nature and needs to be considered through the prism of the highly conflicted and polarised nature of the mother’s family as against the father’s family.
Mrs M does not think well of the father or his family. She has not had much to do with the father.
There was something said by the father at the time of the death of the mother’s mother (Mrs M’s sister) which has further soured the communication.
Mrs M believes that the paternal grandmother is endeavouring to alienate the mother from her children and from the mother’s family.
Mrs M was present at the difficult changeover at Red Rooster in March 2012. She participated in the escalation of the adult conflict by impeding the paternal grandmother getting in and out of the car but sees no fault on her part or her daughter’s part in terms of the conflict.
I am concerned about the approach of Mrs M (and likewise with Mrs W) in terms of their lack of interest and/or investigation with regard to Mr D (the mother’s brother). Mr D was placed on the Sex Offenders Register and was charged with and apparently admitted to offences relating to an elder child of the mother. Yet nobody seems to have enquired into it in any meaningful way. Simply, in many ways the events were air brushed out of the family history.
In the context of serious allegations being made about the father in regard to the subject children, that lack of interest and enquiry with regard to a member of their family shows starkly the level of conflict and partisanship of Mrs M.
I will treat the evidence of Mrs M carefully as it is partisan and is framed to strongly support the position of the mother.
Mr G
Mr Gs affidavit was filed 8 May 2012. He is a boyfriend of the mother’s elder child, J. He is also the child of Ms H who lived with the mother for a period of time together with his siblings. Mr G provided a character reference for the mother. He adds little to the substantive issues to be considered in these proceedings.
Mr Carter
Mr Carter is the children’s maternal grandfather. He provided three affidavits, being those file 3 November 2011, 9 September 2011 and 8 May 2012.
Mr Carter (‘the maternal grandfather’) gave his evidence by telephone. He was strongly aligned to the mother’s cause. I am not convinced that he was entirely frank in giving evidence. There was evidence from the mother that her father had, in the past, difficulties with gambling debts. When that was raised with the maternal grandfather he asserted he had no gambling difficulties at all.
The maternal grandfather was present in September 2010 when T made a disclosure to him. The circumstances are set out in the annexure to the maternal grandfather’s affidavit. Reading that statement it is clear that there are alternatives to the conclusion drawn by the maternal grandfather. There are many innocent explanations, however, the maternal grandfather took it to be the most appalling of explanations. His evidence is somewhat different to that of the mother and it is clear from the evidence of the mother and the maternal grandfather that the nature of the disclosure seemed to be expanded over time.
I am confident that something was said at that time but I have concerns about the reporting and the obvious innocent explanations which could be offered. It was almost as if there was a search for some criticism.
The maternal grandfather has very limited interaction with the children at the present time.
Dr S
Dr S is the children’s paediatrician; she prepared a letter dated 29 October 2013 which was admitted into evidence.[16] Dr S summarised the health difficulties facing the three children in that report. She had concerns about the parenting of the situation, namely:-[17]
When [the paternal grandmother and mother attended consultation] both parties constantly engaged in interrupting disagreement with each other. Dr [S] was required to ask one party to leave on several occasions. She says ‘this environment of constant opposition must have a deleterious effect of the children’s sense of security, belonging and community’.
She says that the paternal grandmother ‘tends to deny the children have developmental problems (also observed by other practitioners).’
[16] Exhibit M3.
[17] Ibid.
Dr S said that she has not met the children’s father.
Dr S was asked about her involvement with the children and said it would be of assistance to her if there were orders that the parties accept directions by her, or a similarly qualified paediatrician, speech therapist and physiotherapist.
Dr S said that the mother attends appointments and shows that she cares and desires to be involved with the children and that:-[18]
I cannot comment on [the mother’s] ability to parent. This needs to be assessed by an appropriate service. Previously her own health, housing and financial difficulties had made this very difficult for her. I do not think I have a good understanding of [the mother’s] ability to manage independently but this should be assessed.
[18] Ibid.
This careful explanation of the mother’s role is somewhat troubling in terms of the mother’s ability to cope, particularly bearing in mind that Dr S has been involved in the care of the children for most of their lives.
There was no challenge to the qualifications of Dr S and the mother and paternal grandparents seemed to respect her and her approach to the children. I accept her expert evidence.
Ms Nussbaum
Ms Nussbaum is the children’s paternal grandmother and is, to all intents and purposes, the primary carer of the children at this time and has been so since May of 2012.
The paternal grandmother relied on her affidavit filed 30 August 2013. She tendered her diary,[19] a letter from Y Children’s Contact Service (confirming the use of that facility as a changeover venue would continue[20]) and an email to her solicitors of 27 August 2013.[21]
[19] Exhibit PG2.
[20] Exhibit PG3.
[21] Exhibit PG4.
The paternal grandmother was reluctant in acknowledging the extent of T’s special health needs as raised by Dr S.
The paternal grandmother has engaged with the care of the children in particular the medical care, in a thoughtful and caring way. However, at times she parents by reference to her solicitor and is rigid in the application of orders.
The paternal grandmother became confused when the Court asked her how she would manage the conflict with the mother in the absence of these proceedings. She fell back upon the structure of the orders.
She gave evidence that the father was agitated in court this week as a consequence of the ongoing assertions of sexual abuse against him.
The last of those allegations was some time ago and it seemed to me that the paternal grandmother was endeavouring to protect her son and to argue for her son in this area. She had difficulty acknowledging him having a less than equal role when it was clear from her evidence that that was the case.
When cross-examined in relation to the conflict which occurred in front of Dr S the paternal grandmother acknowledges the adverse role of the mother but has little insight into her own impact in that regard.
The paternal grandmother was questioned about whether the children spent time with their elder sister, at Christmas 2013. She prevaricated in relation to her answers in that respect or deflected those answers by saying she would need to refer to her notes.
It is clear from the evidence of the paternal grandmother that she is the decision-maker in respect of the children.
The paternal grandmother endeavours to give evidence frankly but again, like most of the lay witnesses in these proceedings, is significantly affected by her partisan view of the proceedings. I need to treat her evidence in that light and carefully.
The mother cross-examined the paternal grandmother after a break of a number of days. The paternal grandparents had arranged for the child C to be baptised in early 2013. They did not inform the mother nor did they seek her consent, despite there being an order for equal shared parental responsibility.
There was a history that X had been christened in that church however, the explanation provided by the paternal grandmother was inadequate. She had clearly made up her mind to have the child christened in her church, irrespective of the views of the mother and in the absence of discussions with the mother. That does not bode well for the future.
The father described the paternal grandmother as ‘stubborn as a mule’. That is a description in relation to some of the approaches she adopts. She lacks some insight into the role of the mother.
The paternal grandmother at times is insensitive and arrogant in terms of the children’s relationship with the mother and is, at times, somewhat rigid in her views. However, she has provided good stable parenting for the children and I am satisfied, on the evidence before me (including that of the health care professionals) that the children are improving under her care.
The mother submitted of the paternal grandmother the following:-[22]
[The paternal grandmother] gave evidence under oath that she does not negotiate with her son’s solicitor, she took a message from him once.
Her hand written diary[23] on the 16th of March 2011 states;
I rang Chris … re [the mother’s] phone call and her coming here. Chris said it was critical to our court hearing in June to have her here whenever she wants. We also phoned John …, he also said it would be great if [the mother] came here.
She gave evidence that she was parenting via her solicitor and was inflexible in making independent arrangements in regards to the children without the support of her solicitor. She gave evidence that she did not allow any extra time on [J’s] birthday, Christmas, Easter and school holidays because her solicitor told her not to.
She also said that she withheld [X] on his second birthday and organised a play at a play centre.
[The paternal grandmother] scowled at me and became aggressive in her manner during the cross examination. She was polite to all other people who spoke to her.
[22] Exhibit M6 - Mother’s Closing Submissions dated 13 November 2013 – page 16.
[23] Exhibit PG2.
The submissions of the mother in this respect were generally accurate.
The Independent Children's Lawyer submitted:-[24]
[The paternal grandmother’s] evidence can be categorised as being very forthright and concrete. Her evidence indicated that she was inflexible to the role of the mother in parenting the children, and in fact her evidence was that she would ask her solicitor what to do when certain issues arose about involving the mother in parenting.
[The paternal grandmother] was not convincing in giving the impression that she was prepared to negotiate with the mother. She gave evidence that she failed to notify the mother about C’s Christening this year.
[The paternal grandmother’s] evidence was that she took the children to the vast majority of appointments both educational and medical although she did say that the paternal grandfather and the father gave her good support.
[The paternal grandmother] gave evidence that she had changed the orders she was seeking so that the mother would only have 5 hours a week not because of anything that had happened in the trial but over the last few months. She did not think this was unreasonable, and it appeared that this showed her attitude that the mother was incapable of looking after the children and that she did not want to deal with the mother. It is counsel’s opinion that such an attitude does not auger well for any future communication between the parties.
Her evidence showed that she was generally hard-line in relation to her dealings with the mother and rigidly followed orders.
[24] Exhibit ICL8 Independent Children’s Lawyer’s Closing Submissions – undated - pages 6 and 7.
I accept that submission by the Independent Children's Lawyer. I find that from her own ‘coloured perspective’ the paternal grandmother tries to give evidence truthfully.
Mr Nussbaum
Mr Nussbaum is the children’s paternal grandfather. He relied upon his affidavit filed 29 August 2013. The paternal grandfather is aged 73 and has movement difficulties. He has difficulty in walking. The paternal grandfather concedes that it is the paternal grandmother who is the decision-maker and he follows her lead in relation to the proceedings and the care of the children.
The paternal grandfather says that the children’s father helps out, particularly in relation to sporting activities.
The paternal grandfather is able to get on with the mother but has some limited insight into the involvement of the mother in the lives of the children. From his evidence it seems that his objection to the mother seeing the children on the weekend relate, at least in part, to the impact on the children’s weekly activities.
The paternal grandfather initially agreed that five hours per fortnight was not enough to maintain a relationship although sought to resile from that. I am satisfied that he endeavoured to be frank with the Court although through his own subjective and polarised view of the dispute.
The Father
The father relied upon his three affidavits sworn 12 September 2011, 18 November 2010 and 30 August 2013.
I raised with the father’s counsel the agitation displayed by the father during the course of the trial. The father endeavoured to offer an explanation which I did not find was sufficient.
The father was very keen to present his own case and his answers to questions were often non-responsive. This was raised with him and it seemed to have little effect on him.
The father was questioned about his driver’s licence. He was somewhat vague about various aspects of it and his explanation as to his driver’s licence was inherently unlikely.
The father said that in August 2010 he was pulled over by the police and subject to a roadside alcotest which gave a nil result. He said he was required to attend at the police station and he declined to do so knowing that his licence would be suspended for two years. He gave no plausible explanation as to why he would refuse the test.
As a consequence his licence was suspended for two years and after some pressing it became clear that he also has an interlock device, with a new licence, which requires him to subject himself to a breath test to enable the car to be driven. The father did not get his licence back until January 2013 and as he had used up all of his points, prior to his licence being cancelled or suspended, it was necessary for him to wait a further period of about six to eight months before he could obtain a driver’s licence.
The father obtained his licence in August 2013 and the interlock device will continue for three years from that date until August 2016.
The paternal grandparents arranged for a car for the father which is fitted with the interlock device which costs about $50 per month. They did not provide a similar device fitted to their car or cars, and the father’s car does not have appropriate seat belts and restraint devices for the younger children.
It is likely, from the evidence of the mother that the father, from time to time, drives the children in his car. This is not clear whether it is T (who is entitled to travel in the father’s car) or the younger children.
The father’s evidence in relation to these events was unreliable
The father asserted that he did about 30 per cent of the work involving the children but again his evidence in that regard did not survive cross-examination.
He says he takes the children to school or pre-school or care, but generally this would have to be with the paternal grandmother. He could not recall the name of the children’s teachers at the school nor the principal.
That is not indicative of a parent who is engaged in the parenting of the children, particularly T. The father was cross-examined in relation to the parenting he did with C and X and his answers in that respect were again unsatisfactory due to a lack of significant detail.
When questioned about the children’s relationship with their elder sibling, J, the father’s answer was ambivalent.
The father is collecting documents to provide information to the children when they attain eighteen. His evidence in this regard was troubling.
His involvement with the children has been at best, marginal.
The Independent Children's Lawyer submitted as to the father:-[25]
[The father] gave evidence that he had changed his application before the court because of what he had heard during the trial, including the sexual penetration of [J]. His evidence was that he did most of the cooking in the house but he conceded that his mother did most of the parenting (he said about 70%).
He gave evidence that if something happened to his mother then his father and he, along with the help of a friend …, would cope with parenting the children.
He agreed that he was very frustrated at the allegations of the mother against him and denied them outright.
[25] Ibid at page 7.
The father was at times disingenuous in respect of his evidence and at times prevaricated. I do not accept his evidence as being accurate or reliable.
Ms R
Ms R works for the Department of Human Services, Victoria and is a manager of a Sexual Abuse section. She has significant experience including five years in the Australian system and twelve years overall, including overseas work.
In a letter dated 14 May 2013 Ms R set out her reasons for closing the file in relation to the ongoing allegations of sexual abuse clearly made by or on behalf of the mother. The substance of the letter was derived from the files of the Department and from Ms R’s observations. It included:-
(a)The denial by the mother and members of her family that there had been a concern over her brother. Despite the writer being aware of reports over the last 10 years.[26] This tied in the mother’s (admitted) practice of allowing her brother to attend her home.
(b)The extensive (but inconclusive) enquires in respect of the allegations that T had been sexually abused. This included a conclusion that the claims had not been substantiated.
(c)The mother’s failure to fully engage with N Women’s’ Service.
(d)The mother’s transient existence.
(e)The concern of officers that the children had some developmental issues and that then the mother had not been able to provide appropriate stimulation and boundaries.
[26]See Exhibit ICL6.
Ms R also tendered two medical reports, one from Dr L (a forensic paediatrician) dated 29 May 2012 and the other from Dr O (a Consultant Paediatrician) dated 24 August 2010. It is of note that the mother denied any history of domestic violence from the father at that time.
Ms R had some serious concerns about the mother. These concerns included the number of interviews in which T was involved (from her report there were at least five in 2012) plus significant engagement of the child with health care professionals.
Subsequent to the closing of the file another notification arrived. The view of the Department is that there are no concerns on the evidence before them. The view of the Departmental Officers was that the children were not at risk in the unsupervised care of the father.
The report expressed concern about instability in regard to T’s life and recommended a cessation of the uncertainty caused by the inter family claims and counter claims. The report went on to recommend that T would benefit from therapeutic services in terms of psychological assistance to manage and understand the stressors to which he has been exposed.
That process has not yet been undertaken, however, it is something which was also a concern to Dr S.
In respect of the concerns about J in the care of her uncle, there were a number of family meetings in which the mother was involved and it was decided that the family did not wish to proceed in respect of any allegations against the mother’s brother. This evidence added to my concerns about the mother’s evidence that she was ‘unable to remember’ the issues in respect of J.
Ms R was concerned about the mother’s ability to care for the children without some significant support. If it was to be for a few days, then she would need some sort of support from her family. If it was longer than three of four days she would need much broader support. Although if I allow the children to spend time with the mother over five days she is likely to have the help of her cousin and aunt.
Ms R expressed that her observations of the children and investigations showed the children are relatively well behaved with the paternal grandparents (as distinct from their behaviour with the mother) and are improving in the care of the grandparents.
Ms R observed that when the children were with the mother they were difficult to manage and at one stage T was running around with a knife. Ms R observed that arrangements had to be put in place at Y Children’s Contact Service for the mother to take the children separately as she had difficulty managing them. I prefer Ms R’s understanding of that situation than the explanation provided by the mother, having regard to the concerns I have in regard to the quality of the mother’s evidence.
During the course of Ms R’s cross-examination it was an agreed fact that the Y Children’s Contact Service is open from 10.00am to 6.30pm Friday, 9.00am to 5.30pm Saturday and 12.30pm to 6.00pm Sunday.
Ms R had obtained material in relation to J and the allegations of abuse. The mother’s brother was not convicted of an offence relating to J although there were two issues of concern that she had been possibly abused by her uncle.
The Independent Children's Lawyer said of Ms R:-
Ms [R’s] evidence was that she had had an involvement with the mother and her family since early April 2012. She visited the mother’s house on a number of occasions and had conducted interviews[27] with the relevant adults and professionals. Her evidence was that the mother would not cope with parenting the children without considerable help from her family and support services. She gave evidence that in her opinion there were not enough support services available to help the mother who was limited in her intellectual functioning and had struggled to maintain contact with medical and other professionals in the past. Ms [R] had witnessed the mother’s inability to properly control the children on a home visit, and in fact witnessed [T] running around with a knife and saw that the mother did not deal with that situation very well.
Ms [R] gave evidence that the mother had made numerous unsubstantiated allegations against the father with regards [sic] sexual abuse of [T]. However, Ms [R] had organised for a CASA report which indicated that not only was there no evidence of wrongdoing by the father but that the mother’s actions could be partly responsible for the behaviour of [T]. Ms [R] noted that Dr [K] possibly had a “fictitious disorder”.
Ms [R] gave evidence that the mother had not been forthcoming in her dealings with DHS, particularly with regards her knowledge of her brother [Mr D’s] sexual offending history and historical notifications with regards [sic] sexual offences against her eldest daughter, [J], by [Mr D].
[27] At page 8 of the Independent Children’s Lawyer’s Submissions dated 18 April 2013.
I accept that submission as to the evidence of Ms R who, like this court has concerns about the mother’s frankness.
Unsurprisingly counsel for the paternal grandparents submitted that the evidence of Ms R was reliable saying:-[28]
[Ms R] appears to be an intelligent and dedicated protection worker who has had significant involvement with the family for over 12 months and has made numerous enquiries in relation to her role as child protection officer. Despite criticisms by Ms [W] and the mother, Ms [R] appeared balanced, but significantly concerned in relation to the mother’s ability to care for and meet the needs of these particular children, and her ability to protect the children from themselves and from [Mr D]. It is clear that she has faced considerable adversity from the mother and Ms [W] with criticisms being made on a professional level against her, and this provides an insight into what the paternal grandparents have experienced over the last few years.
[28] Exhibit PG6 - page 7.
The mother on the other hand was scathing in her submissions and evidence of Ms R. In those submissions the mother repeatedly made criticisms of Ms R and the assistance she ought to have been provided but which, in the view of the mother, she did not receive. The mother is of the view that I should give Ms R’s evidence little if any weight.
The evidence of Ms R is in many ways supported by the objective facts, such as the mother’s peripatetic lifestyle, the evidence of the expert medial witnesses and others.
I accept the evidence that Ms R was frank, direct and generally reliable.
FINDINGS
The mother has limited ability to care for the children, and even this is significantly constrained by her own needs and difficulties.
The mother has moved constantly in the last five years, at least eight times.
The three children all have varying degrees of intellectual disability and/or behavioural delay issues. All three children are special needs children and the Court is concerned that the mother has demonstrated she has difficulties in meeting those needs. The children’s behaviour has been challenging and the mother has had difficulty managing that behaviour.
The paternal grandparents have shown a better capacity to manage the children (including helping them become settled) than has the mother. In the paternal grandmother’s primary care T’s behaviour is improving and he is doing much better at school. It is a similar situation with X and C, who are improving.
The mother has not engaged well with the Department of Health and Human Services and is in conflict with them.
The mother has made several allegations of sexual abuse and when analysed carefully there is little evidence to support sexual abuse of the children. I have made comment elsewhere about the mother’s allegation of the alleged sexual assault on her by the father. I have significant concerns as to the veracity of those factual assertions.
Having regard to the material provided by the Department of Human Services and the other evidence, it is clear that the mother has engaged the children in an inappropriate pattern of complaint which may have led to some form of systems abuse over a lengthy period of time by way of the allegations against the father, which continue.
Since the change of primary care to the paternal grandparents in mid-2012 there has been much less court activity. The children have better engaged with health care professionals and have made significant developmental gains.
PRIMARY CONSIDERATIONS
Section 60CC(2)(a) – The benefit to the child of having a meaningful relationship with both of the child’s parents; and
Each of the children has a meaningful relationship with the mother and the father. It is not in issue that these relationships need to be preserved and nourished. The question is how this can occur in terms of the mother.
The issues regarding the father are less complex. He intends to live with the paternal grandparents and the children in his parents’ home. The only issues are whether he is substantially supervised when he is with the children. For the reasons set out elsewhere that supervision is no longer to apply.
The other putative issue was whether or not and if the father is to move from his parents’ home as recommended by Dr K.[29] The mother no longer seeks to press for an order that the father not live at his parents’ home. Even so, and despite the recommendations of Dr K, the father is not an unacceptable risk to the children and he is proactively involved in their lives. I would not on the existing evidence restrain the father from living with his parents and using that time to develop or maintain his relationship with the children.
[29] At page 36, paragraph 64 of Dr K’s Report dated 28 September 2012.
Given those circumstances the children will have a meaningful relationship with the father irrespective of the outcome.
If the paternal grandparents are successful on their primary application and even their alternative it will endanger the continuation of a meaningful relationship. The relationship between the children and the mother is good. Dr P says:-
87. With respect to the nature of the children’s relationships with their caregivers and siblings, the children present as familiar and comfortable with both parents and their grandparents; only [X] showed a clear preference for one caregiver, that being his grandmother. There was an affinity between [X] and [C] but [T] and [X] operated completely independently of each other during all observations, as if strangers. This is perhaps unsurprising given the age difference and [X’s] communication difficulties.
88. [The mother] presented as a child-focused woman who managed herself appropriately at interview and provided a largely coherent narrative of her experiences, though this was somewhat fragmented due to her high anxiety. She was observed to interact with the children appropriately, however, as [C] was asleep and [T] was engrossed in a computer game, the demands on her attention were significantly reduced compared with a typical day with the children. Of the two assessments of [the mother’s] intelligence, the writer prefers the full assessment by Mr [U] to the abridged assessment by Dr [K]. Mr [U’s] more favourable (and likely more reliable) estimate of [the mother’s] intellectual functioning indicates that she operates at a level significantly below average, making her vulnerable to concrete thinking and limited reasoning skills.
Section 60CC(2)(b) – The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother says that the children are at an unacceptable risk of sexual abuse in having unsupervised time with the father. She relies upon a number of incidents in support of this assertion.
In her affidavit of 29 October 2010 the mother asserted that complaints were made by T to her and to her father that he (T) had been sexually abused by his father. The mother’s evidence was that she had been told at 5.00am on Thursday 9 August 2010 by the maternal grandfather that the child had complained to him that the father had touched T’s bottom inappropriately and that he had ‘weed’ on him. The mother claimed, sometime later, that a finger had been placed in the child’s bottom.
The versions provided by the maternal grandfather was that it was one event at about 9.00am on 9 August 2010. The mother’s version was that it was two events, one at 5.00am and one at about 9.00am on that day.
The descriptions of what each said and what each saw are different and there is a clear indication that the descriptions have been amplified. By the time the child saw a specialist (referred to by a general practitioner) the allegation was that the father had defecated and urinated on the child and that there had been a great degree of interference.
I have concerns about the veracity of the evidence of the mother and the maternal grandfather. It is significant that these complaints were made soon after consent orders were entered into by the mother on an interim basis in the Federal Magistrates Court (as it then was) on 2 August 2010.
It is also significant that in about November 2011 the mother consented to the father having unsupervised time with the children. This occurred in the circumstances where she, at that time, believed the children were safe. The mother was legally represented and said that she was not pressured into those orders.
The second set of incidents arises out of events of July/August 2011. The mother sets out her versions of those events in paragraphs 12 to 20 of her affidavit filed and sworn 12 November 2011. The mother claims that she was the subject of a sexual assault by the father in July 2011 and that on or about 13 August 2011 the father took the then two year old X from her arms and threw him against the wall and then the father punched the mother. These events were denied by the father. The paternal grandmother was present at both times and saw no sign of these complaints.
The mother complained to the police after those alleged events took place. She gave the police a somewhat different version. She asserted (through the police application for an intervention order) that the removal of the child from the mother’s arms and the punching took place on 1 July 2011. The mother said that that was more correct than her affidavit.
The mother then gave a different version of events when she applied for her own intervention order on 26 August 2011.[30] When pressed, the mother asserted that there were similar incidents on 1 July and 13 August. Her evidence was inherently implausible and had a sense of invention.
[30] Annexure PMM8 to the father’s affidavit filed and sworn 12 September 2011.
The mother had raised an issue about T acting inappropriately in another area. The mother did not press that issue as she said she did not believe it.
In December 2011 the mother complained that T came out of the shower and she asserted that he may have acted inappropriately. When pressed she said it happened so quickly that it may not have been inappropriate, and the mother said it was not an issue.
The mother raised an issue about T acting out on 12 March 2012 which was observed by her friend Ms E. Ms E was under eighteen at the time of the alleged incident and is now over eighteen and an affidavit was not filed by her. The mother said the incident occurred quickly and on her evidence it appears to be not a matter of grave concern to the mother.
The mother gave evidence of an incident in a bathroom of an interaction between the two elder children. The mother’s description of this was troubling. After the incident she spoke with her cousin, Mrs W and later spoke to an officer of the Department of Human Services. It happened quickly and has not happened since.
On the evidence, there are issues as to the mother’s credit and issues as to whether the incident may have been amplified in her mind.
In her evidence on day four of the hearing the mother made it clear that there were three, at most four, incidents of a similar nature which occurred on 1 and 2 July 2011, 13 and 14 August 2011 and 20 and 21 August 2011.
When asked why she did not report the offences (other than that alleged on 1 and 2 July 2011) the mother said she was unwell and now cannot remember. She prevaricated in relation to this evidence.
These allegations of family violence and sexual impropriety made by the mother against the father are largely unsubstantiated and are possibly fabricated or at least exaggerated by the mother. In respect of the earlier allegation it is likely that it was a misinterpretation of an otherwise innocuous comment.
Given the mother’s reaction to these incidents and the expert evidence and reports it is likely that the mother has facilitated the children to have been subjected to systems abuse. Part of the reasons for the orders set out in these Reasons is to prevent adverse impacts upon the psychological development of the children. It is likely that the mother will continue to make allegations of abuse.
Section 60CC(3)(a) – Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
In her report Dr P observed as to the children’s particular views:- [31]
86. [T] and [X] present with significant vulnerabilities that limited their capacity to participate in this assessment at an age-expected level. Their views could not be elicited.
[31] Exhibit ICL1.
As to the children’s respective relationship’s with the parents and paternal grandparents she said:-
87. With respect to the nature of the children’s relationships with their caregivers and siblings, the children present as familiar and comfortable with both parents and their grandparents; only [X] showed a clear preference for one caregiver, that being his grandmother. There was an affinity between [X] and [C] but [T] and [X] operated completely independently of each other during all observations, as if strangers. This is perhaps unsurprising given the age difference and [X’s] communication difficulties.
The children’s age, health and maturity is such that their views (if expressed) would be given some but not overwhelming consideration. In this case the children’s health and circumstances are such that any views expressed are of limited value.
Section 60CC(3)(b) – The nature of the relationship of the children with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The children have a close relationship with all of the carers. The child X in particular has a very close relationship with the paternal grandmother. It is in the children’s best interests that all of those relationships continue.
The children have been in the primary care of the paternal grandparents since early to mid-2012 and the children spent significant time with the paternal grandparents prior to 2012. There had been a week about arrangement which was at times ad hoc and chaotic.
Since the children have gone into the care of the paternal grandparents they have become far more settled. In particular the paternal grandmother has taken steps to better provide health care for the children, although she has been reluctant to engage a speech therapist for C. I have some concerns about her explanation about that reluctance. The paternal grandmother has not seriously engaged T in psychological care, which needs to be seriously addressed.
The mother’s approach in caring for the children has been troubling, particularly with regard to the medical assessments and interviews to which T was subjected. The mother had problems in managing the children, particularly all three at one time.
Section 60CC(3)(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;
The father (and through the paternal grandparents) has not shown a willingness and to facilitate and encourage a close and continuing relationship between the children and the mother. Some examples are the christening of C without the mother’s knowledge and consent, the failure to allow the children to see the mother on Christmas Day 2012 and the application for draconian orders in terms of the children’s times with the mother.
The paternal grandmother has at times parented through her solicitor, rather than engage the mother.
I accept the evidence of the father poking his tongue out at the mother and Mrs W. It was indicative of his somewhat agitated behaviour in court during the hearing.
The mother is unwilling and lacks the ability to facilitate and encourage a close and continuing relationship between the children and their father. She believes the father is totally incapable and is a risk to the children. She does not want him to live in the same home as the children (albeit in the context of a recommendation of Dr K). In his report Dr K said of the mother [32]:-
[The mothers] account of the allegations, unless there is evidence otherwise to support these allegations, is likely to be invalid. Additionally, based upon the information available, it is likely that these allegations have been consciously produced rather than being a function of some psychological process.
[32]Exhibit ICL2 – paragraph 56.
I accept the underlying facts and the conclusions reached by Dr K in this respect.
Section 60CC(3)(d) - The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents;
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living);
The children have been living with the paternal grandparents and at times the father since about March 2012. Dr P said in her report:-
96. The information available to date from these sources suggests that the care provided by the paternal grandparents is superior to that of the mother, though they too experience significant challenges. It is highly likely that this family will continue to come to the attention of Child Protection and that these issues may attract further proceedings in the Children’s Court jurisdiction. It seems clear that both the paternal grandparents and the mother require significant support in meeting the needs of the children and that their receptiveness to support from relevant agencies will be key to whether the children can remain in either caregiver’s care for the long-term.
The evidence of Ms R and Dr P is that the children’s behaviour has improved greatly since residing in the full time care of the paternal grandparents. In addition the same witnesses have recommended that the present arrangements should continue. In addition there is evidence that the mother struggled in terms of her parenting of the children, not just after the birth of C, but over a period of time.
Given that evidence this Court is very cautious with regards a change of the parenting arrangements for these children, whether that be more than equal time as sought by the mother or much less time as sought by the paternal grandparents. Either of those changes, bearing in mind the circumstances prior to March 2012, would not be in the best interests of the children as it may adversely impact of their wellbeing.
There is a concern that the children have been and will continue to be excluded from their maternal family and their sister J. Given the approach by the paternal grandparents to date there is some substance to that concern. Thus the times provided by the orders to enable a relationship with the mother’s family are as far as the Court can reasonably go, given the evidence of the expert witnesses including Ms R.
Section 60CC(3)(e) – The practical difficulty and expense of the children spending time with and communicating with a parent;
There is no issue in this regard.
Section 60CC(3)(f) – The capacity of:
(f)each of the child’s parents;
(g)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;
The mother has had difficulty meeting the emotional needs of these high need children; she does not recognise the extent of that problem. There is evidence that she has failed to follow up medical appointments for herself and the children. She has relied upon the paternal grandparents and other members of family to support her. That need of support is ongoing.
The mother has had something of a peripatetic lifestyle. There is evidence that she moved home on regular occasions over the last few years.
I accept the evidence of Dr P as to the relationship between the children and the paternal grandparents and the mother. It is clear that the primary attachment figure for the children is the paternal grandmother. The children have a good relationship with the father, the paternal grandfather and the mother.
The mother’s capacity to parent is diminished by virtue of her often inconsistent approach to the children. At times she says the paternal grandparents are good, warm and loving and of great assistance. An example of this is the mother’s view of the paternal grandparents where she sets out in paragraphs 23 onwards, of her affidavit filed the 3 November 2010, acknowledgement of their significant encouragement. This evidence is inconsistent with the subsequent evidence of the mother, particularly in her affidavits of 4 April 2012 and August and October of 2013.
The mother has been the subject of investigation by the Child Protection Authorities in Victoria and the mother has disagreed with the approach adopted by the case officer, Ms R. Such was the mother’s anger at Ms R and antipathy with Ms R that the mother gave up spending some times with the children because Mr R would be present on those occasions.
The mother has denigrated the father asserting that he suffers a significant psychiatric disorder although there is no evidence of that in the medical reports before the Court.
There was much made of an issue with the mother shortly after the birth of C. The mother was quite unwell and suffered a temporary mental illness which involved the mother being compulsory hospitalised for a short period of time. The report of Dr BB of February 2011 was tendered[33] and she noted that the mother ‘responded well to treatment … and was discharged off involuntary treatment”. There was no sequel in relation to those events and I am satisfied it was of limited duration.
[33] Exhibit ICL3.
The mother conceded that in the last four to five months the communication between her and the paternal grandparents has improved and is now much better than it was in the past. She said a communication book made things much easier.
The mother, albeit reluctantly, conceded that the children had improved since going to the full time care of the paternal grandparents in May 2012. This was not a concession by the mother that their parenting would be better than hers. The mother gave evidence that T occasionally had difficulties with his moods ‘but these have not happened recently’.
A report dated 30 August 2012 from the CASA Counselling Service was tendered in evidence.[34] This report involved investigation and complaints against the father in which the reporters concluded that ‘[T]’ behaviour was likely to be as a result of the stressors in the family and manifestation of the conflict within the family’. The report recommended counselling for T.
[34] Exhibit ICL4.
The mother conceded that the maternal grandparents provided a broad range of assistance and had wanted to share care with her since 2008 particularly in terms of medical assistance of the children and their education.
The parties have been the subject of concerns from the Department of Human Services Victoria for some time. They were first involved when T was born in 2005.
Ms R from the Department was involved for about two years or less. The mother does not trust Ms R and believes that she is biased and had not addressed the concerns the mother had in relation to her views about C’s asserted speech development. The mother made it clear that the 50/50 arrangement was based on legal advice but her genuinely held wish was that the children should live primarily with her.
I have some concerns about the ability of the paternal grandparents in caring for the children, including those referred to earlier and having regard to the age and rigid approach of the paternal grandparents in their communication with the mother.
However, I have much greater concerns about the mother’s ability to parent, as I have discussed in these Reasons. Given the evidence of the father and the expert evidence about the father I am not satisfied that he has the ability to provide for the needs of the children, including their emotional and intellectual needs. The mother submitted that she has:-[35]
…endeavoured to act as the primary care giver that I have been unsuccessful. The court should be concerned that no current evidence has been submitted to the court during the trail [sic] that indicates this has been properly assessed. In fact, key witness [Ms R] has not even bothered to observe me with the children for over 16 months.
[35] Exhibit M6 - Mother’s Closing Submissions dated 13 November 2013 - page 22.
I have considered and generally accepted the evidence of Ms R and the other experts and I am satisfied that there is evidence which raises concerns about the mother’s ability to parent the children.
Given the evidence of the father and the expert evidence about the father I am not satisfied that he has the ability to provide for the needs of the children, including their emotional and intellectual needs.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents; and any other characteristics of the child that the court thinks are relevant;
The mother submitted that the Court have regard to her mental health and that of the father. I have done so. It is also clear that the paternal grandparents have not fully acknowledged the father’s mental health and behavioural issues to which Dr K and Dr P have deposed.
Section 60CC(3)(h) – If the child is an Aboriginal child or a Torres Strait Islander child;
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right.
This is not a relevant issue.
Section 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The Court repeats the comments made earlier in these Reasons.
The Independent Children's Lawyer submitted that the paternal grandparents took their responsibility to the children seriously. I accept that that is the case.
The mother has the difficulties referred to elsewhere in these Reasons; she moved home many times and did not, initially at least, recognise the concerns around her brother and his history of abuse.
Section 60CC(3)(j) – Any family violence involving the child or a member of the child’s family;
and
Section 60CC(3)(k) – If a family violence order applies, or has applied, to the child or a member of the child’s family;
I repeat what I have said earlier.
Section 60CC(3)(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;
The parties have engaged in parenting litigation for many years. It was only when the children went to the care of the paternal grandparents that the intensity of the litigation reduced. The Independent Children's Lawyer submitted:-[36]
This case has had a sad and long history in the courts. There have been numerous baseless notifications by the maternal family about the children when they are in the care of the paternal grandparents. The mother has made two rape allegations against the father which are unsubstantiated. However, the evidence is that since the children have resided with the paternal grandparents there has been no court action and the children’s lives have stabilised. It is the Independent Children’s Lawyers submission that it would not be in the children’s best interests to interfere with the current residential arrangements.
[36] Exhibit ICL8 Independent Children’s Lawyer’s Closing Submissions dated 18 April 2013 – page 5.
Given the circumstance outlined in these reasons I am inclined to accept these submissions.
Section 60CC(3)(m) – Any other fact or circumstance that the court thinks is relevant;
I have had regard to all of the relevant facts and findings set out earlier in these Reasons.
Section 60CC(4) – The extent to which each of the children’s parents have fulfilled or failed to fulfil their responsibility as a parent and the particular extent to which the child’s parent has:
(a)Taken or failed to take the opportunity
(i)To participate in making decisions about the major long term issues in relation to the children;
(ii)Spend time with the children;
(iii)Communicate with the children.
(b)Has facilitated or failed to facilitate the other parent:
(i)Participating in the decision making about major long term issues in relation to the children;
(ii)Spending time with the children;
(iii)Communicating with the children.
(c)Has fulfilled or failed to fulfil the parent’s obligation to maintain the child.
and
Section 60CC(4)(A) – If the children’s parents have separated, the court must, in applying subsection 4 have regard, in particular, to the events that have happened and the circumstances that have existed since the separation has occurred.
The father has left the parenting of the children to the mother and paternal grandparents. I do not accept his assertions of significant involvement with children and I share the concerns about his involvement expressed by Dr K and Dr P.
As to the mother, she has endeavoured to be involved in the care and upbringing of the children throughout. The issues in respect of her parenting are as set out earlier. I repeat the findings and concerns already articulated.
DISCUSSION
Parental responsibility
I am conscious of the comments made by Dr P in her report, when she said:-[37]
In summary, the weight of available information to the writer suggests that it is in the children’s best interests for their paternal grandparents to maintain primary care and to have parental responsibility for the children. Though [the father] has been largely uninvolved in decision making with respect to the children, there are no apparent grounds for removing his parental responsibility at this time, hence it is suggested he share this responsibility with his parents. It seems appropriate that [the father’s] time with the children proceed as discussed in paragraph 84, dependent on the finding of fact with respect to the allegations of abuse. The children will benefit from continuing to spend substantial and significant time with their mother, as per the interim arrangement.[38]
[37] Exhibit ICL1 - paragraph 99.
[38] Given the oral evidence of Dr P she moved away from the substantial time recommendation given more information about the mother.
As to the father the evidence was that the father has, from time to time, poked his tongue out at the mother and had at times engaged in immature and aggressive behaviour to the mother and members of her family.
The mode of behaviour was consistent with that observed by Dr K in his report[39] and Dr P in her report.
[39]Exhibit ICL1 - paragraphs 59 and 60.
I am concerned about the father’s, at times, erratic behaviour and a history of anger. I am convinced that the father has in the past expressed his anger by punching walls and damaging furniture.
The evidence of Dr K and Dr P as to the father’s behaviour was consistent with my observation of the father and his agitated behaviour during the course of the hearing. The father has not engaged in serious parenting of the children, he does not take them to and from pre-school, school or day care, nor does he engage in any meaningful involvement with the significant medical needs of the children.
He certainly has acquiesced or supported the paternal grandparent’s health care of the children and at least acquiesced in respect of the christening of C. The father has, at times, been a troubled individual. There is some evidence that he acts out in anger and becomes easily agitated.
However, the Independent Children’s Lawyer supports the father being included with parental responsibility of the children.
The father has effectively permitted his mother to parent the three children despite him being present in the paternal grandmother’s home, sometimes on a full time basis and sometimes on a part time basis. However, the mother and paternal grandparents seek orders for him to share parental responsibility, and given the generally sensible approach by the paternal grandparents in the context of the findings of fact and the nature of the orders, I am satisfied that the shared responsibility order, insofar as the father is concerned, meets the needs of the children.
As to the mother, for some time now the parties have endeavoured to exercise parental responsibility as a group. The events over the last eighteen months and beyond are such that it is not possible for these children to be effectively and properly parented in the shadow of an order for joint parental responsibility by all relevant parties. There are numerous examples in this regard including the difficulties with changeover, the hostility shown in terms of medical appointments and the multiple medical appointments that have taken place.
There are other examples highlighted in these Reasons and in the evidence. The issues, in terms of joint exercise of parental responsibility, are complicated; these include the mother’s approach to problem solving, the rigid and forensic approach by the paternal grandmother, their poor interaction and communication, their respective use of the Court as a problem solver. As a consequence Court is not confident that the mother, in all of the circumstances, can properly exercise parental responsibility.
The Independent Children’s Lawyer submitted there ought to be shared parental responsibility with the father and the paternal grandparents and not the mother.
The paternal grandparents have taken parental responsibility seriously. In these orders the children are to be living with the paternal grandparents and in the circumstances of this case the parental responsibility should rest with them.
However, in terms of their approach to parental responsibility the Court is not without concern. The high handed and insensitive way in which the paternal grandparents arranged for the baptising of C in the absence of seeking the mother’s approval or even informing her of that event was troublesome. In addition there is the concern, expressed by Dr S, that the paternal grandparents are at times dismissive of advice given to them.
Having regard to the concerns of Dr S and her evidence (and the broader evidence) of the interaction between the mother and paternal grandmother I am satisfied that the parties animosity with each other would become worse and this will continue to impact on the children. The mother and paternal grandfather are incapable of managing any form of effective negotiations.
In addition the paternal grandparents must accept the advice of the children’s paediatrician, psychologist and speech therapists.
To provide equal shared parental responsibility with the mother may either prevent or inhibit the exercise of civil and sensible exercise of parental responsibility and/or lead to further litigation.
I intend to make an order that the paternal grandparents have equal shared parental responsibility with the father, however, there will be limits on the exercise of that parental responsibility. The father and paternal grandparents must accept the advice of the children’s paediatrician, psychologist and speech therapists.
In terms of parental responsibility there was an order sought by the Independent Children’s Lawyer and in many ways is sought by the mother. I intend to enable the mother to participate in the school activities and also to have regard to the children’s health, in which she has a significant interest. To facilitate that process I intend to put in place an order restraining all parties from demeaning, abusing or belittling the other party or members of the other party’s family in the presence or hearing of the children.
Residence
The three children have had a close and meaningful relationship with the paternal grandparents since soon after their respective births. They have lived with the paternal grandparents who have been their primary carers from early to mid-2012 and continue to do so.
There is a benefit to the children in continuing their meaningful relationship with the paternal grandparents and their father in the circumstances in which they presently find themselves. The children appear to be improving in that environment.
I have had regard to all of the relevant factors under s 60CC and the evidence and consequence findings of fact which I have alluded to earlier in these reasons.
There is no issue as to the children residing with the paternal grandmother, it is the extent of time with the mother that is in issue.
Time with the mother
The substantive issue in these proceedings was what time should the children spend with the mother. The paternal grandparents and the father wish to limit the time the children spend with the mother to about five hours on two out of every three Sundays or in the alternative limited overnight time.
The Independent Children’s Lawyer recommends that the children spend time with the mother from 5.00pm Friday to 5.00pm Sunday, commencing the first Friday after the orders are made in these proceedings.
In addition, unlike the paternal grandparents, the Independent Children’s Lawyer submitted that the children spend alternate weeks during mid-year school holiday periods and alternate weeks during the Christmas/New Year school holiday periods and arrangements for other special occasion with the mother.
The mother seeks orders similar to those of the Independent Children’s Lawyer with regard to special occasions plus special days. In terms of school terms, she seeks a time from 3.00pm Friday until 3.00pm Monday.
I am concerned about the mother’s difficulties with parenting to which I have discussed in these Reasons, but I am conscious that the mother has had the assistance of her aunt, her grandmother and her cousin and that such support is likely to continue. In addition I am satisfied that it is in the children’s best interests for them to have a continuing relationship with their mother and with their sister J.
It would be difficult for such relationships to continue if the Court were to adopt the approach sought by the father and paternal grandparents.
Whilst I am concerned about the mother’s capacity to care for the children, I generally accept the submissions of the Independent Children’s Lawyer that the periods suggested by him are such that the mother will be able to cope (albeit with assistance from members of her family) and it would enable the children to maintain and enhance their relationship with the mother and, importantly, with J.
In coming to this conclusion I have had regard to the factors as they apply to the circumstances of this case pursuant to s 60CC to which I have alluded earlier and to the findings of fact to which I have also alluded to earlier.
Changeover
The mother sought orders that changeovers take place as agreed by the parties. The mother sought permission for the members of her family to be present or undertake the changeover (there is nothing to prevent that occurring in these orders I propose).
The father and paternal grandparents sought that changeovers take place at the Y Children’s Contact Centre and if that was unavailable then the Geelong Police Station. The reason for this approach arose out of the difficulties in the past leading up to and including the traumatic changeover for the children in March 2012.
The changeover at Y Children’s Contact Service has worked well. It cannot work on Christmas Day and some other occasions. I am not content to order changeover to take place at a Police Station as that is more about the litigation than the needs of the children.
Having regard to the matter now being finalised I am satisfied, in all of the circumstances, that the changeover should continue at Y Children’s Contact Service provided it is available. If it is not available it should take place at some public place such as a McDonald’s family restaurant and I have made an order to that effect. Hopefully the parties will make their own arrangements as to changeover.
I do not intend to make an order that specific individuals be permitted to attend at changeovers on behalf of the mother. Clearly there will be times when the mother is unavailable and sensible arrangements ought to be put in place with regard to her father, aunt and sister-in-law. However, that is a matter for the parties.
The parties keep each other advised of their contact details
This is an order that each of the parties sought in one form or another. Accordingly, I will be making an order to that end as it meets the needs of the children and is, in substance, by consent.
The children’s participation in school, kindergarten and other extracurricular activities
One of the significant concerns of the paternal grandparents is that the children are unable to participate in extracurricular events. It is important that the children retain a relationship with the mother but that they also engage in reasonable extracurricular activities.
The impact of the orders will be that the children will spend each alternate weekend with their mother and I intend to make orders that the mother will take the children to extracurricular activities reasonably arranged by the paternal grandparents, provided there has been some discussion for that in advance and that the paternal grandparents are conscious that the mother has the care of all three children.
Injunction against Mr D
The mother’s brother is Mr D and he was involved in sexual abuse of two children. The mother says she has no recollection of the nature of those events. I have discussed this elsewhere in these Reasons and I am concerned about the veracity of her evidence in that respect.
In her affidavit filed and sworn 30 August 2013 the mother notes that her brother’s registration on the Sex Offenders List no longer exists and that his file has been destroyed. She says that he lives with his fiancé and has been in a stable relationship for over six years.
She goes on to say at paragraph 18:-
…I will continue to ensure that [Mr D] does not have contact with the children until such time as the court restriction is limited.
The evidence from the case manager from the Department of Human Services was that there were discussions with the mother in respect of these concerns in April 2012. The mother’s evidence in relation to those events is unreliable. The mother gave evidence that her brother was a frequent visitor even after the allegations were made about the elder child.
The mother employed her brother to mow her lawns and do the garden edges at her residence. Her evidence about him attending when the children were present was initially that his fiancé would be protective and then when pressed said that the children were not present. I do not accept this evidence.
In the circumstances there is an unacceptable risk to the children in so far as Mr D is concerned and the orders sought by the paternal grandparents, the father and the Independent Children’s Lawyer should be put in place.
During the course of the trial the parties consented to an order keeping Mr D away from the children, I have made that order.
J’s birthday
There is general agreement that the children should spend time with the mother and J on Js birthday. I have made that order.
Other times
These orders are designed for the children at the present time and the nature of the engagement between the children and their carers will no doubt need to be varied from time to time. There has been a tendency in these proceedings to parent via solicitors or to strictly adhere to court orders.
In these orders I make it clear that the parties can enter into agreements with regard to parenting. This is done in the hope that the parties will moderate their, at times, uncompromising stance to enable the children to develop and maintain a relationship with all of those significant family members to them from both sides of the family.
Bulk billing medical centre
The mother sought an order that the children attend a bulk billing medical centre. Arrangements were made by the paternal grandparents. I do not intend to impose further conditions in this regard having considered all of the circumstances in these proceedings.
Negotiations direct with the paternal grandfather
The mother seeks an order that the mother and paternal grandfather be the negotiators in relation to the arrangements for these children. Whilst I do not discourage and in fact I encourage communication between the parties and through whichever means is acceptable, I do not intend to make a specific order, other than those to which I have alluded to earlier in these reasons.
Easter
The mother seeks orders in relation to Easter. Easter is generally part of the school holiday period and will either fall with the mother or the paternal grandparents. I will leave it to the parties to arrange any variations to that in accordance with these orders
Christmas
I have made orders in accordance with that suggested by the Independent Children’s Lawyer relating to Christmas. Both the mother and the Independent Children’s Lawyer sought orders that the children spend each alternate Christmas with one family or another. It is clear that the children did not spend time with the mother and their sister J on Christmas Day 2012. It is appropriate that they ought to spend Christmas Day with the mother and her family in 2013.
The order sought by the Independent Children’s Lawyer was for a time from Christmas Eve to midday Christmas Day. The mother sought time with the children from 4.00pm Christmas Eve to 4.00pm Christmas Day.
I intend to make orders for Christmas in accordance with that sought by the mother to enable the children to spend significant time with each family each alternate year rather than have a changeover on what would otherwise be a happy day. Accordingly, the time will be from 4.00pm Christmas Eve until 4.00pm Christmas Day each alternate year.
Schools
The mother sought an order that the children attend their current school. I have put in place orders that parental responsibility is that of the paternal grandparents. This will include determining which schools are in the best interests of the children after notifying the mother.
The father’s time and supervision
In relation to the allegation of sexual abuse by the father I am satisfied that he does not pose an unacceptable risk of harm to the children given my concerns about the mother’s evidence. Dr P said in her report that:-
83. [The mother’s] allegations of sexual abuse of [T] and sexual assault of her by [the father] were not canvassed during this assessment as [the mother] has made multiple statements already via affidavit and during assessments with other professionals. Due to both previous proceedings being resolved on a final basis by consent, none of [the mother’s] allegations have ever been tested in Court. Given the serious nature of the allegations, the DHS is unlikely to support unsupervised time between the children and their father without a finding with respect to the risk posed by [the father] to the children; this is an unacceptable imposition if [the father] poses negligible risk to the children and will significantly limit the potential of the father-child relationships. The children will benefit from the Court testing the veracity of the information provided by [the mother] and a finding with respect to the allegations.
84.The file review indicates significant inconsistencies in [the mother’s] reports on these issues to date that the ICL case summary for the 2011 trial indicates there is evidence to suggest the allegations made in 2010 were fabricated, calling into question [the mother’s] credibility. If the risk posed to the children by their father is determined to be unacceptable, the children would be best served by an arrangement that limits his time with them and subjects all time to supervision of other responsible adults. If would not be appropriate for [the father] to have parental responsibility. This would likely necessitate [the father] leaving the family home if the children are ordered to live with or spend substantial and significant time with their grandparents. If the Court accepts the allegations do not have merit, [the father’s] time with the children should proceed without restriction.
This being the case and noting the recommendation of the Independent Children's Lawyer I do not propose to leave in place the supervision order.
I certify that the preceding three hundred and eighteen (318) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 December 2013.
Associate :
Date : 18 December 2013
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Consent
-
Procedural Fairness
-
Costs
-
Appeal
0