Galpin and Anor and Wilkinson and Anor

[2016] FCCA 973

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALPIN & ANOR & WILKINSON & ANOR [2016] FCCA 973

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged fourteen and eight years – applicants are paternal grandmother and step-grandfather – allegations of neglect due to drug addiction – applicants seek children live with them – mother denies allegations of neglect – mother alleges applicants and father pose risk to children – mother asserts father conceived child with a person not legally able to consent to sexual intercourse – mother asserts applicants colluded with father to conceal existence of child from her – high conflict – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 11F, 60CC, 61DA(3), 65C

Cases cited:
Goode & Goode (2006) FLC 93-286
M & M (1988) FLC 91-979

Applicants:

MS GALPIN

MR WEBB

First Respondent: MS WILKINSON

Second Respondent: MR SANDFORD

File Number: ADC 600 of 2016

Judgment of: Judge Brown

Hearing date: 21 April 2016

Date of Last Submission: 21 April 2016

Delivered at: Adelaide

Delivered on: 27 April 2016

REPRESENTATION

Counsel for the Applicants: Mr Hemsley

Solicitors for the Applicants: SE Lawyers

Counsel for the First Respondent: Mrs Read

Solicitors for the First Respondent: Legal Services Commission Elizabeth

Counsel for the Second Respondent: Mr Bowler

Solicitors for the Second Respondent: Marciano Lawyers

ORDERS

Until further or other order:

1. The children X born (omitted) 2001 and Y born (omitted) 2007 live with the mother.

2. The children spend time with the respondent father on alternate Sundays each fortnight between 10:00am and 5:00pm commencing on Sunday, 1 May 2016.

3. The children spend time with the applicant grandparents on alternate Sundays between 10:00am and 5:00pm but in lieu of Mother’s Day the children spend time on the preceding Saturday, 7 May 2016.

4. All handovers to occur at a location as agreed between the parties and failing agreement to be at the McDonald’s Restaurant, (omitted).

5. Pursuant to section 11F of the Family Law Act the parties and the children attend a child inclusive family dispute resolution conference at the Family Court of Australia with a family consultant on 19 July 2016 at 9:30am, to discuss the care, welfare and development of the children in an endeavour to resolve any differences between the parties in relation thereto and the parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

6. Order 4 of the orders made on 4 April 2016 are discharged.

7. Each of the parties participate in random urine drug screen testing on no more than two occasions during the period of the adjournment as requested by the other’s solicitor for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008;

8. Further consideration of this matter is adjourned to 1 August 2016 at 9:30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 600 of 2016

MS GALPIN AND MR WEBB

Applicants

And

MS WILKINSON

First Respondent

and

MR SANDFORD

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a complicated inter-generational dispute regarding parenting arrangements for two children – X born (omitted) 2001 and Y born (omitted) 2007, which is complicated by significant levels of mistrust and hurt, which have recently arisen between the parties concerned. 

2. The applicants in the proceedings are the children’s paternal grandmother, Ms Galpin and her partner, Mr Webb, who has been referred to in these proceedings as the paternal step-grandfather.  He is not biologically related to X and Y. 

3. The second named respondent Mr Sandford is Ms Galpin’s son.  He is also the father of X and Y. The first respondent, Ms Wilkinson is Y and X’s mother.  The mother and father are recently separated.  

4. It is the applicants’ case that they have a close familial relationship with X and Y.  This is because Ms Wilkinson and Mr Sandford and the children lived with them, at their home in (omitted) between 2004 and 2006 and again more recently in 2010 following their eviction from rented accommodation.  During these periods, they became concerned about the parenting capacity of the mother and father, particularly arising from their use of cannabis. 

5. The mother and father separated, in difficult and emotionally challenging circumstances, in January of 2016.  Since this time, the father has not spent any time with either X or Y and the grandparents only modest amounts, following the institution of these proceedings.  Both the father and the grandparents assert the mother is being unreasonable.

6. The reason for the separation relates to the father’s involvement with Ms J, who has been described as being the father’s step-niece.  From this I assume that Mr Webb is Ms J’s uncle and is therefore not biologically related to Mr Sandford.  It is however the mother’s position that the father should have assumed a protective role in respect of Ms J because of his greater maturity and his position of responsibility in her family.

7. In 2011, Ms J gave birth to a stillborn child.  Mr Sandford was the child’s father.  At the time the child was conceived, Ms J was apparently fifteen years of age, whilst Mr Sandford was in his early twenties.  Later, on (omitted) 2015, Ms J gave birth to another child, Z.  Again, Mr Sandford was Z’s father and Ms J was under eighteen when the child was conceived. 

8. It is Ms Wilkinson’s case that Mr Sandford had promised her that he had ceased his relationship with Ms J after the first child was conceived.  In her affidavit, Ms Wilkinson deposes as follows:

   “In January 2016, when I became aware that the father had a prolonged unlawful sexual relationship with his step-niece, a minor, the father blamed Ms J for the affair.  The father denied all responsibility and had no remorse.

   I believe that the father is an unacceptable risk to the children as he does not accept responsibility or have any insight into the wrongs of his actions.  Ms J was his niece and had a difficult upbringing.  The father provided her with care when they entered into a sexual relationship.”[1]

   [1]  See affidavit of Ms Wilkinson filed 19 April 2016

9. Ms Wilkinson is also aggrieved that the grandparents withheld information from her concerning Mr Sandford’s involvement with Ms J and the circumstances surrounding the conception of Z.  She believes that they have passively condoned Mr Sandford’s conduct, whilst wrongly castigating Ms J as the instigator of the sexual liaison between her and Mr Sandford. 

10. In addition, Ms Wilkinson is critical of the grandparents because she alleges that they directed X to keep information regarding the relationship between their father and Z secret from her.  On her case, this has caused X to feel extremely guilty.  In these circumstances, the mother has arranged counselling for X.

11. The grandparents commenced these proceedings on 24 February 2016.  On both an interim and final basis, they seek orders that X and Y live with them.  Necessarily, this would require the children to be delivered up to them immediately.  The reason for this extreme order is that the grandparents allege that Ms Wilkinson has significant drug and mental health issues which disqualify her from being the children’s primary carer. 

12. Ms Galpin concedes that she and Ms Wilkinson have never had a close relationship.  Ms Galpin alleges that when the parents lived with her and Mr Webb, they constantly smoked cannabis and neglected X’s needs.  Most significantly, Ms Galpin asserts that Ms Wilkinson allowed a piece of a gauze swab to remain lodged in X’s nasal cavity for many months, severely threatening the child’s health. 

13. In mid-2006 the mother, father and X moved to rented accommodation in (omitted).  Thereafter the grandparents assert that they saw X regularly on alternate weekends and were, in effect, an informal safety net for the child, because they were able to monitor her health and safety and provide respite care. 

14. Ms Galpin further asserts, when Y was born in (omitted) 2007, Families SA were involved because of the mother’s significant cannabis addiction.  In particular, it is alleged by her that Y tested positive for drugs at birth. 

15. Again, it is Ms Galpin’s case that she became extensively involved in providing for Y’s care, following her birth.  She further asserts that the parents and the children, including the mother’s older son W, relocated to the grandparents’ (omitted) property in 2010, following the family’s eviction from the (omitted) home.  It is Ms Galpin’s position that the eviction provides cogent evidence that the parents have extreme difficulties managing their finances which she attributes to the mother’s drug use.

16. It is also Ms Galpin’s evidence that she begged Mr Sandford to reveal the existence of Z and his relationship with him to Ms Wilkinson.  However, Mr Sandford insisted that the fact that he was Z’s father was to remain a secret from everyone else.  Ms Galpin deposes that she respected her son’s wishes and concentrated on developing a relationship with Z.  As such, she asserts that she has done nothing wrong so far as Ms Wilkinson is concerned.

17. It is also her case that she continued to develop a close and loving relationship with X and Y, who spent alternate weekends and half of all school holidays in the grandparents’ care at the (omitted) property.  Ms Galpin asserts the children enjoyed spending time in this rural setting and interacting with all the animals which live there, including X’s pony, (omitted). 

18. However, Ms Galpin further asserts that whenever X and Y came into her care they were: 

    ·Invariably infested with lice;

    ·Expressed concerns that they were scared of their mother because she would yell at them all the time;

    ·The children’s personal hygiene was poor and X, in particular, suffered from terrible body odour;

    ·Upon the onset of menarche, X had no knowledge of how to use or dispose of feminine hygiene products;

    ·Neither child appeared to be developing in an emotionally normal fashion. 

19. The grandparent’s application was first listed before the court on 4 April 2016.  On this date neither the mother nor the father had filed answering material.  At this stage, the mother agreed for X and Y to spend alternate Sundays, from 10:00am to 5:00pm with the grandparents, on condition that the children not come into contact with Mr Sandford.  The proceedings were adjourned until 21 April 2016.

20. In her affidavit material, Ms Wilkinson describes herself as having been a stay at home mother, who has always had the primary care of X and Y.  She is currently engaged in tertiary education, after successfully returning to school in 2008.  It is her position that both children are safe and progressing well in her care. 

21. Ms Wilkinson denies that she has ever been abusive towards X.  It is also her case that no blame can attach to her for the lodgement of the gauze, in X’s nose, which came to light when she took the child to an ENT specialist, after repeatedly requesting help from her local GP.  It is further Ms Wilkinson’s case that the grandparents have overstated the degree of their involvement with X and Y.  She denies that she has ever neglected the children’s care or hygiene. 

22. Ms Wilkinson acknowledges that Families SA were involved following Y’s birth but asserts that the Department’s involvement was limited to a few weeks and a handful of home visits, which were soon discontinued.  It is her case that she has sought drug counselling to reduce her cannabis usage which is now historical in nature.  She has also deposed that she has successfully sought treatment in respect of a borderline personality disorder.  No further details have been provided in respect of this condition and its implications, if any, for her care of the children.

23. At present, Ms Wilkinson is living with her mother, Ms S in (omitted).  Ms S supports her daughter’s evidence that, of late, the grandparents have had a limited level of involvement with X and Y, whom she asserts are now more interested in pursuing their own extramural activities.  It is her evidence that X has proper access to sanitary products and deodorants. 

24. It is the mother’s case that the children should have only limited daytime interactions with their grandparents and no time whatsoever with their father, whom she categorises as posing a serious risk to them, particularly X, now that she is an adolescent, because of the nature of his previous inappropriate sexual relationship with Ms J.  Ms Wilkinson has filed a notice of risk, in which she has indicated that she has reported the father’s involvement with Ms J to a child welfare authority. 

25. Mr Sandford has also filed a notice of risk.  In this notice he asserts that Ms Wilkinson is a habitual marijuana user, who is incapable of providing proper care for the children concerned because of her drug use.  As such, he asserts that the children are at risk of suffering psychological harm, due to the mother’s deficiencies as a parent. 

26. On both an interim and final basis, the father seeks orders that the two children live with him and he have sole parental responsibility for them.  As with the applicant grandparents, Mr Sandford seeks that the mother undergo a series of supervised drug screen tests, before she has any further extensive involvement with the children. 

27. The father alleges that the mother spends approximately $250.00 per fortnight, on her marijuana usage.  He acknowledges that, in the past, he also used the drug, but nowhere near as extensively as did Ms Wilkinson.  He is willing to undergo drug testing to support his assertion that he no longer uses cannabis. 

28. The father supports the children spending some time with the applicant grandparents.  However, he categorises Ms Galpin as being overbearing towards him and dismissive of his parental abilities.  He concedes that the household he shared with Ms Wilkinson was at times messy, but denies that it was ever unsanitary or infested with vermin, as the grandparents assert.  He acknowledges that his mother and step-father did, from time to time, provide financial support for him, Ms Wilkinson and the children. 

29. At present, Mr Sandford is living with his grandparents in (omitted).  He is employed full-time as a (occupation omitted) but has indicated that he would still be able to assume the role of primary carer, for the two children, if the court ordered it.  At present, X and Y attend school at (omitted) High School and (omitted) Primary School respectively.  Both the mother and father wish the children to continue at their current schools.  The grandparents propose a change to a private school closer to (omitted). 

30. As is apparent from this summary of the various factors, which bring the parties to the current point, this is a complex matter, marked by significant conflict.  Clearly, a crisis arose, earlier this year, when Ms Wilkinson discovered the existence of Z. 

31. Against this background, each party now seeks that the two children concerned should live predominantly in their care and have limited interaction with the other parties concerned.  If either the grandparents or the father’s applications are successful, this would represent a significant change of arrangements for the children.

32. These proceedings are intended to resolve these issues, on a provisional basis and provide appropriate mechanisms to investigate the competing claims, of the various parties concerned, in more detail.

The legal principles applicable

1. I now turn to the legal principles, which I have to apply in the case.  The proceedings arise at an interim stage.  As a consequence, as all the parties will be aware, I have not had an opportunity to take any lengthy evidence from any of the persons who are involved in the case.  More significantly, there has not been time for a family report to be prepared.

2. In this case, X will soon be fifteen years of age.  Y will be nine on her next birthday.  In these circumstances, it seems to me that it would be helpful for the views of the children, particularly X, to be canvassed sooner rather than later. 

3. To this end, both the grandparents and the father are supportive of the parties and the children concerned taking part in a family dispute resolution conference pursuant to the provisions of section 11F of the Family Law Act.  Such a conference can take place on 19 July 2016 at 9:30am.

4. Following this conference, if necessary, a family report can be ordered, most likely in conjunction with the fixing of the case for final hearing.  Both family reports and child dispute resolution conferences are invariably very useful in assisting the court to formulate appropriate orders for the parenting of children. 

5. Such interventions allow the relevant family consultant to see the children concerned, interview them and get some sort of perspective on what are the children’s views about what is happening to them.  In this case, this is likely to be important, given the extremely polarised positions of the adults concerned in the case. 

6. However, at this stage, I do not have any advice or report from a family consultant.  Nonetheless, I must still make arrangements for the care of X and Y in what are undoubtedly highly conflicted circumstances. 

7. It is frequently the case that the court is called upon to make difficult decisions in respect of the care of the children when the facts are bitterly disputed and where the parties concerned, for all sorts of reasons, are in a state of crisis.  As a consequence, it is very often difficult for the court to have a clear sense of what has actually occurred.

8. But, notwithstanding those evidentiary difficulties, it remains the court’s responsibility to do the best it can, with the evidence which is available to it, to put in place the orders, which it thinks will best serve the interests of the children concerned.

9. The manner in which the court makes arrangements for the care of children is through the making of a parenting order.  A parenting order is what it suggests:  it is an order which allows the court to make an order for determining such things as where children should live, who the children should spend time with and other arrangements for the children’s care. 

10. As a consequence of section 65C of the Family Law Act, there is no doubt that grandparents have standing to bring an application for a parenting order.  The section specifies that the grandparents of the children may apply to the court for a parenting order. 

11. This situation is emphasised by the objects and principles of Part 7 of the Family Law Act, which are contained in section 60B.  In particular, section 60B(2)(c) specifies that children have a right to spend time, on a regular basis, with and communicate, on a regular basis, with both their parents and other people who are significant to their care, welfare and development, such as grandparents and other relatives. 

12. It is the grandparent’s case that they are persons who are significant to X and Y’s care, welfare and development.  The mother does not agree, although the father does.  From my perspective, it seems clear that both children know the applicants well and have spent significant periods of time, with them, in the past.  I think that this is implicit, given Ms Wilkinson’s agreement that the family did live with the grandparents in the case and her begrudging acceptance that X and Y should spend some weekend time, during the adjournment period, with the applicants. 

1. Although the hearing at the interim stage takes a different form to that which occurs at the final hearing stage – the former is a truncated hearing, the latter is a process which entails a more detailed examination of evidence, including cross‑examination – the same principles apply at both stages.  Whatever I do at this stage, I must be satisfied that it is in X and Y’s best interests.

2. How a child’s interest is to be best served is determined by reference to the matters set out in section 60CC. In a case called Goode & Goode,[2] the Full Court of the Family Court has indicated that in a truncated interim hearing, such as this one, the court should endeavour to analyse the factual situation, focusing on what is agreed, whilst bearing in mind that it cannot make findings of fact about all manner of disputed things. 

   [2]  Goode & Goode (2006) FLC 93-286

3. Rather, the court should focus on what is agreed or what appears to have been the situation in respect of prior care arrangements for the child concerned. In this context, it should analyse what findings should be made in respect of the relevant section 60CC factors.

4. Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it: primary considerations and a longer list of additional considerations.

5. There are two primary considerations which are set out in section 60CC(2)(a)(b), namely:

   ·The benefit to the child of having a meaningful relationship with both of the child’s parents, and

   ·The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect of family violence.

Consideration

1. At this interim stage, the main focus of the court’s deliberation must be on the risk of X and Y sustaining some form of physical or psychological harm as a consequence of being exposed to abuse, neglect or family violence.  As previously indicated, the court is directed to give priority to protective concerns relating to children. 

2. The grandparents concerns regarding Ms Wilkinson’s parenting of the children are largely historical in nature, particularly the issues relating to the gauze lodged in X’s nose and the level of the mother’s cannabis addiction, when Y was born.

3. In these circumstances, in my view, it is telling that the grandparents have only chosen to formally raise these concerns after the issues, surrounding the conception of Z, have come to light, which has subsequently led to the rupture between the paternal and maternal aspects of X and Y’s family. 

4. The grandparents concede that the mother and children have lived independently of them for the past few years.  In these circumstances, at this stage, it seems more probable than not that Ms Wilkinson is the children’s main provider of care and has been for a significant period of time. 

5. Accordingly, on balance, it seems likely that the most significant person, in emotional terms, to the children is their mother.  This is a factor, which in my view, militates against any significant changes in care arrangements for X and Y at this early interim or provisional stage, unless there are very serious risk factors associated with continuing the long standing regime.  I am not currently convinced that there are such compelling concerns, at this stage.

6. The grandparents and father’s concerns about the mother relate to her cannabis use.  They are not able to produce current evidence to indicate what is the mother’s current level of usage, if any, of the drug at the present time.  It is implicit in Ms Wilkinson’s case that she would not be able to successfully pursue her tertiary studies, as successfully as she has done, if she was in the grip of a significant cannabis dependency. 

7. In my view, a proximate response to the degree of risk arising from the grandparents and father’s allegations is for the mother to undergo a process of random drug screen testing.  In this context, in my view, it is significant that Families SA have had no involvement with Ms Wilkinson for many years. 

8. The mother opposes X and Y spending any time with their father because she alleges that they are at risk of suffering some form or sexual abuse because of the nature of his previous relationship with Ms J.  Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act.  It means:

   “(a)  an assault, including a sexual assault, of the child; or

   (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)    serious neglect of the child.”

9. In respect of the issue of sexual abuse, the emphasis, in the definition, is on the sexual exploitation of children.  The definition speaks of the use of a child as a sexual object.  It is clearly Ms Wilkinson’s position that she fears that because Mr Sandford had an illicit sexual relationship with Ms J, there is a risk he will attempt to use either X or Y to achieve his own sexual gratification. 

10. The leading authority, in respect of the issue of sexual abuse involving children, is the High Court decision of M & M.[3]  In this case the High Court confirmed that in any matter involving allegations of abuse, the only duty of the court is to “make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.”  As a result of this emphasis, the court does not have an obligation or duty to “resolve in a definitive way the disputed allegation of sexual abuse.” 

    [3]  See M & M (1988) FLC 91-979

11. The court must bear in mind that proceedings, in respect of care arrangements for children pursuant to the Family Law Act 1975, are not strictly disputes between the parties involved because the primary enquiry is into the result which will best serve the interests of the children concerned.  Nor, where there are allegations of sexual abuse, are they criminal proceedings.

12. In M & M, the High Court formulated the test, which has been referred to as the “unacceptable risk test” as a standard to achieve a balance between the risk of detriment to a child from sexual abuse and the possibility of benefit to the child from parental access.  The High Court said as follows:

    “To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”[4]

    [4]  See M & M (supra) at page 77,081

13. The allegations against Mr Sandford, so far as Ms J is concerned are undoubtedly serious.  The mother asserts that she has reported the matter to the child welfare authorities.  However, as far as I know, no formal complaint has been made to police. 

14. There is no suggestion that Mr Sandford has ever behaved inappropriately towards the children concerned in this case or that he has attempted to exploit them, in any way whatsoever, to achieve his own sexual gratification.  It is in this context that the risk constituted by the father, to X and Y, must be assessed. 

15. Clearly, Ms Wilkinson was shocked by the information that Mr Sandford had conceived a child with Ms J.  She apparently discovered this fact when she became aware that Mr Sandford was paying child support to Ms J.  A fact which he had concealed from her.  No doubt, given that she had been deceived by her then partner, she was also very angry with him indeed.  I can understand her emotional response to this state of affairs.

16. However, on balance, I do not consider that it must follow because Mr Sandford has had an illicit relationship with Ms J that his own children are at risk from him to an unacceptable degree.  Until recently, Mr Sandford had occupied the same household as X and Y and had done so for many years.  In these circumstances, it seems more probable than not that the children have a meaningful level of relationship with their father and will benefit, if this relationship is supported. 

17. In my view, there are risks of the children sustaining some form of psychological harm, if they are deprived of the opportunity to spend time with their father, who up to this point has undoubtedly been a significant figure in their respective lives.  Clearly he saw the children, on a daily basis, until January of this year.  Thereafter, he has not seen them at all.  On balance, I do not think it is likely to be of benefit to the children if this previously significant relationship to them remains severed.

18. Considerations of this type also apply to the grandparents.  No doubt, Ms Wilkinson feels betrayed by them, particularly in respect of her perception that, in cahoots with Mr Sandford, they have deceived her about the existence and paternal origins of Z.  However, in my view, the evidence indicates that both children know their grandparents well and, as such, they are likely to benefit from having a sense of connection with them, particularly given the difficult circumstances, which currently prevail. 

19. In all these circumstances, I do not think that there are sufficiently strong protective concerns, relating to Ms Wilkinson to justify the immediate removal of the children from her care.  Similarly, I do not consider that there are sufficiently strong concerns, relating to the risk of Mr Sandford or the grandparents subjecting the children to abuse, to justify the total withdrawal of the children from their father or the grandparents. 

20. However, having reached this conclusion, I acknowledge that the current emotional topography between all of the parties concerned is extremely unstable and it is not likely to be helpful to either X or Y to be exposed to it.  In addition, there are risks that X, in particular, may feel compelled to take sides, if she has not already done so, in the dispute which has arisen between her parents.

21. In these circumstances, in my view, great care needs to be taken in constructing arrangements for the children to spend time, with both their father and grandparents, in the short term, until further information is to hand, in the form of advice from the family consultant who is to be engaged in the matter. 

22. As previously indicated, the views of the children, particularly X, are likely to be highly influential [section 60CC(3)(a)].  In addition, it is uncertain precisely how the children will react to any extreme change in their circumstances [section 60CC(3)(d)]. 

23. In this context, the children have not seen their father for a period approaching four months.  It seems more likely than not that they have become enmeshed in the dispute between their parents regarding Ms J.  In all these circumstances, until the views of the children have been objectively examined, I believe that a cautious approach is warranted to the time, which they spend with both their grandparents and father. 

24. In my view, given the extreme rift of trust between Mr Sandford and Ms Wilkinson, it would not be appropriate at this interim stage, for the presumption of equal shared parental responsibility to be applied to X and Y’s care [see section 61DA(3)]. Accordingly, at this stage, it is not necessary for me to consider either equal or substantial and significant time between the children and their father.

25. Given the emotional trauma to which Ms Wilkinson has recently been subjected, it seems more likely than not that she will not be supportive of the children spending any extended periods with either their father or grandparents.  Her feelings in the matter militate against there being any attempt, at this stage, for the children to spend extended periods of time with either their father or the grandparents.

26. In my view, it would be naïve of the court, at this stage, to under estimate the impact of the mother’s feelings, on the children, at this juncture.  Again, in my view, it would be prudent to await the advice of the family consultant concerned, which can be obtained within a relatively short timeframe.  In particular, the family consultant can attempt to explore X’s feelings about the current situation and tease out, as appropriate, her knowledge of and attitude to the relationship between her father and Ms J, which produced Z.

27. In all these circumstances, I have come to the conclusion that it would be in the best interests of the children if the current regime continues so far as the children spending time with their grandparents is concerned, namely on each alternate Sunday from 10:00am until 5:00pm.  This is not as long as the grandparents would prefer, but will enable them to maintain a relationship with the children and perhaps enable the mother sufficient time to adjust emotionally in her attitudes towards them. 

28. In my view, in the current highly strained circumstances, it is appropriate for Mr Sandford to spend an equal amount of time, with the children, on the other Sunday of the fortnight.  Again, I have no doubt that he would prefer much more time. 

29. However, I have come to the conclusion that it is appropriate for the court to adopt a cautious position in regards to the reintroduction of the father into the children’s lives, following the extreme disruption following the events of January of this year.  There are risks, I think, in the court attempting to force matters along too quickly.

30. I will also make orders requiring the father and mother to undergo two supervised drug screen tests, at their respective expense, on the direction of the other’s solicitor, on the giving of 24 hours’ notice. 

31. At this juncture, I consider it premature to appoint an independent children’s lawyer for X and Y.  Again, I will await the advice of the family consultant in regard to this issue.  I will adjourn the proceedings until 1 August 2016 at 9.30 am for further directions, when the family consultant’s advice to court will be to hand.  I encourage all concerned to engage proactively with this process.

32. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:   27 April 2016