Gammill & Walworth - [2023] FedCFamC2F 936

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gammill & Walworth [2023] FedCFamC2F 936

File number(s): BRC 14825 of 2019

Judgment of: JUDGE LAPTHORN

Date of judgment: 2 August 2023

Catchwords: FAMILY LAW – PARENTING – Initiating Application by grandmother to spend time and communicate with children – During trial concerns raised as to the best interests of the children in the mother’s care – Interim Orders made for children to live with the grandmother – Allegations of family violence in mother’s home - Poor school attendance by children whilst with the mother – Mother untruthful to Police and Child Welfare Department about her relationship – Allegations of family violence by father – Father did not participate in hearing – Consideration of no time order – Section 68B personal protection injunctions

Legislation:
Child Protection Act 1999 s 17

Evidence Act 1995 s 140

Family Law Act 1975 (Cth) ss 4; 60B ;60CA; 60CC; 61B; 61C; 61DA; 65DAC; 68B; 68C; 102NA

Cases cited:
AMS and AIF (1999) 199 CLR 160; 24 Fam LR 756

B v B Family Law Reform Act (1997) FLC 92-755

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

MRR v GR [2010] HCA 4

Re Evelyn (1998) 92-415

Rice v Miller(1993) FLC 92-400

Russell & Russell and Anor [2009] FamCA 28

Division: Division 2 Family Law

Number of paragraphs: 433

Date of last submission/s: 16 March 2023

Date of hearing: 3 May 2022; 13, 14, 15 & 18 July 2022; 1 September 2022; 13, 14, 15 & 16 March 2023

Place: Brisbane

Counsel for the Applicant: Mr Ness

Solicitor for the Applicant: Rosegold Legal

Counsel for the First Respondent: Ms Kenny

Solicitor for the First Respondent: Legal Aid Queensland

Counsel for the Second Respondent: Self-represented (3 May 2022 – 1 September 2022)
Mr Ashcroft (13 March 2023 for part of the hearing only)
Self-represented (13 March 2023 – 16 March 2023)

Solicitor for the Second Respondent: Self-represented (3 May 2022 – 1 September 2022)
Dodd Bedford & Associates (13 March 2023 for part of the hearing only)
Self-represented (13 March 2023 – 16 March 2023)

Counsel for the Independent Children’s Lawyer Ms Pendergast

Solicitor for the Independent Children’s Lawyer Swanwick Murray Roche Lawyers
ORDERS

BRC 14825 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GAMMILL

Applicant

AND:
MS WALWORTH

First Respondent

MR O’HARE

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE LAPTHORN

DATE OF ORDER:

2 AUGUST 2023

THE COURT ORDERS:
1.That the children X born in 2012 and Y born in 2014 (‘the children’) live with the Applicant maternal grandmother (‘the grandmother’).
2.That the grandmother have sole parental responsibility for the children.
3.That except in accordance with order 7, the mother be restrained and an injunction issue restraining the mother from spending time or communicating with the children X born in 2012 and Y born in 2014, as follows:
(a)Communicating directly with the children by telephone, video call, social media, gaming platforms or any other form of electronic or other communication;
(b)Asking the children or any other person to communicate with the children on her behalf or to facilitate communication between the children and the mother;
(c)Removing the children from the grandmother or any other person who has the care of the children at the grandmother’s direction including removing the children from their respective schools;
(d)Retaining the children in her care if they come into her care by any means.

4.That should either of the children come into the mother’s care, the mother shall take all steps to ensure they are immediately returned to the care of the grandmother.
5.That pursuant to section 68B of the Family Law Act 1975 the mother shall:
(a)Be of good behaviour towards the grandmother;
(b)Be of good behaviour towards the children;
(c)Not attempt to contact the children by any means unless provided for in this Order. This includes via any form of in person, telephone or electronic communication including (but not limited to) social media, gaming platforms, messaging platforms or any other form of communication over the internet.
(d)Not attend or be within 150 meters of the grandmother and children or their residence;
(e)Not contact the children’s school;
(f)Not attend the children’s school for collection;
(g)Not discuss these Court proceedings in any way with the children.

6.That for the purposes of section 68C(2) of the Family Law Act 1975 it is declared that:
(a)Orders 5(a) and (d) are for the personal protection of the grandmother; and
(b)Orders 5(b) to (g) inclusive are for the personal protection of the children.

7.That the parents be at liberty to send the children gifts to a PO Box nominated by the grandmother on special occasions specifically, Easter, the children’s birthdays and Christmas with such gifts and cards to be scrutinised by the grandmother prior to them being given to the children.
8.That the grandmother keep each of the parents informed at all times of the children’s residential address, an email address and a PO Box address, and shall notify the parents in writing of any change within 72 hours of that change.
9.That the grandmother use her best endeavours to ensure the children continue to spend time with and communicate with the maternal grandfather and maternal step‑grandmother and other members of the children’s extended maternal and paternal families as considered appropriate by the grandmother.

10.That no party denigrate any other party or members of their household either directly to or in the presence of the children nor allow any other person to do so.
11.That the maternal grandmother not be adversely under the influence of alcohol or illicit substances while the children are in her care.
12.That the parties have leave to provide the following documents to their or the children’s treating psychiatrists, psychologists, counsellors, therapists or other mental health or medical practitioners a copy of the following documents:
(a)Report of Dr B filed 3 June 2021;
(b)Report of Dr M filed 20 October 2021;
(c)Report of Dr B filed 24 June 2022;
(d)Report of Dr B filed 19 October 2022;
(e)Report of Dr B filed 21 February 2023;
(f)Reasons for Judgment of this Court;
(g)Copies of videos produced to the Court in these proceedings dated 25 December 2022, 31 December 2022, January 2023 and February 2023.

13.That within 7 days of these Orders the grandmother will contact Dr B to arrange an in person appointment time at the earliest available opportunity to have Dr B to explain the contents of these Orders to the children and the grandmother shall transport the children to and from the appointment as arranged with same to occur in City D.
14.The father spend supervised time and communicate with the children as follows:
(a)For up to four hours per fortnight at a professional contact centre as may be agreed between the father and the grandmother.
(b)By telephone or video call at all reasonable times as may be agreed between the father and the grandmother.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LAPTHORN
INTRODUCTION

Ms Gammill, the maternal grandmother of 11 year old X and 8 year old Y, filed an Initiating Application on 5 December 2019 seeking orders to spend time with the children. The mother, Ms Walworth, strongly opposed anytime between the children and their grandmother. She also opposed the children spending any time with their father, Mr O’Hare, who had filed his own application seeking a shared care arrangement between he and the mother. His application was subsequently consolidated with the maternal grandmother’s and both matters were to be heard together.
During the course of the hearing, which took place over 10 days between 3 May 2022 and 16 March 2023, the nature of the proceedings changed significantly. On 18 July 2022 I made interim orders moving the children from their mother’s primary care into the care of the maternal grandmother. At the time this decision was reserved the children were not spending any time with their mother. The father did not attend at any stage of the final hearing and the trial proceeded in his absence. The father was briefly represented by solicitor and counsel on 13 March 2023 however his representatives were granted leave to withdraw before the hearing recommenced.
BACKGROUND
The maternal grandmother is 60 years of age and lives in the Town E area. She is a community worker working between Town E and Town F. She was previously employed on a full time basis but has reduced her work to part-time during school hours since the children have entered her care. She is not in a relationship. Prior to these proceedings the maternal grandmother had not had any contact with the children since January 2018. Pending the outcome of these proceedings the children are now living with her and not spending any time with their mother.
The mother is 31 years of age. She lives in an undisclosed address in Queensland. She is not currently in a relationship and has no other children. She works as an administrative assistant. She commenced this role in early 2023.
The father is 35 years of age, lives in City G but works in City H. He lives by himself, is not in a relationship and has no other children.
The mother and father had an on again off again relationship from around 2011 until 2018. This relationship was marred by significant family violence. The mother has also had other relationships marred by violence and of particular importance to this case is her relationship with Mr J.
The mother and maternal grandmother have had a long standing conflictual relationship that has not healed over time. Their perceptions of the cause of this conflict differ and will be addressed in this judgment. The mother has also had a difficult relationship with her father from time to time which has required the issuing of family violence protection orders (“protection order”). The impact of family violence has been significant for all the parties and in particular the children. The Queensland Police Service and the Department of Children, Youth Justice and Multicultural Affairs[1] (“the Department”) have had extensive involvement with this family over the years. There has also been a long history of illicit substance and alcohol misuse.
[1] Now known as the Department of Child Safety, Seniors and Disability Services
Although the dynamics of this case changed during the proceedings, the significant issue was and remains whether the children are at risk of harm in the care or presence of any of the parties.
LEGAL PRINCIPLES
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[2] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held:[3]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[2] Section 60CA
[3] (1999) 199 CLR 160 at page 207; 24 Fam LR 756 at page 792
In determining what is in a child's best interests the court must consider the matters set out in s.60CC.
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children's lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child's best interests the principles are:
(a)Children have a right to know and be cared for by both their parents;
(b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture.
[4] Section 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[5] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[6] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child's best interests for it to apply.[7]
[5] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[6] Section 61DA
[7] Section 61DA(2) and (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8]   Unless there is a court order to the contrary each of a child's parents has parental responsibility for that child until they reach the age of 18 years.[9] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[10] A major long-term issue in relation to a child means an issue:
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)       the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)       the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.[11]
[8] Section 61B
[9] Section 61C
[10] Section 65DAC
[11] Section 4
PROCEDURAL HISTORY
When the maternal grandmother commenced these proceedings on 5 December 2019 she merely sought to communicate with the children twice per week, to spend time with them one weekend every six weeks and one week in the Christmas school holidays. Because she did not know where the mother and children were living, she filed an Application in a Case on 4 March 2020 seeking a location order, which was granted in April 2020 in the City K Circuit.
Although solicitors for the father came on to the record in these proceedings on 25 March 2020 he commenced his own proceedings (BRC4114/2020) on 15 April 2020 against the mother in which he sought final orders for, inter alia, equal shared parental responsibility, for the children to live with the parents in a week about basis (Monday to Monday) and half the school holidays and special days. He also sought an order that neither relocate more than 50 kilometres from the City G CBD. This matter was allocated to the City MM Circuit with a first return date of August 2020 but was granted an administrative adjournment to October 2020.
On 17 July 2020 the mother appeared on her own behalf in the City K Circuit and orders were made for her to file her response material, the appointment of an Independent Children’s Lawyer (ICL) and for a Child Inclusive Conference (CIC) to be conducted.
The mother filed her response material on 28 July 2020 in which she sought the children not spend any time nor communicate with either the father or the maternal grandmother. In August 2020 lawyers came on to the record for the mother and 15 days later the ICL came into the matter.
The father did not file response material to the maternal grandmother’s application. During the CIC interviews he told the Family Consultant that he wanted the children to spend five days a fortnight with him around his work schedule.
The mother amended her Response on 22 September 2020 to also seek that all previous orders and parenting plans be discharged, that she have sole parental responsibility for the children and maintained they have no contact or communication with either the father or the maternal grandmother.
Orders were made on 25 September 2020 for the parties to undertake supervised urinalysis testing for both Carbohydrate Deficient Transferrin (“CDT”) levels and illicit drug use and that a diluted test would be deemed dirty. The matter was adjourned to 24 November 2020 for mention. The father’s proceedings were transferred into my docket on 21 October 2020. When both matters came before me on 24 November 2020 I ordered that the father’s proceedings be consolidated in to these proceedings initiated by the maternal grandmother.
On 22 March 2021 and 20 April 2021 I granted adjournments to allow subpoena material to be produced and inspected by the parties. The first family report of Dr B was filed 3 June 2021 and on 1 July 2021 I listed the matter for an interim hearing on 22 October 2021.
The father’s lawyers were given leave to withdraw when the matter came on for callover on 9 August 2021.
A psychiatric assessment from Dr M was filed 20 October 2021. When the matter came on for interim hearing two days later the father failed to attend however the remaining parties consented to orders for Dr M’s report to be released to the mother’s treating medical practitioner prior to her appointment with them and for the interim hearing to be adjourned to 11 November 2021.
On 11 November 2021 the father again failed to appear and I listed the matter for final hearing, noting that a discrete hearing in relation to risk of harm issues would be conducted on 3 May 2022 and the final hearing would resume on 13 and 14 July 2022. I also made a cross examination banning order pursuant to section 102NA in relation to all parties.
The first day of the hearing in May 2022 did not proceed beyond appearances and housekeeping matters as it came to light that there had been recent and significant domestic violence between the mother and her partner Mr J with an upcoming hearing in the Magistrate’s Court. The matter was stood down to allow for inquiries to be made and the inspection of subpoena material that had been produced late, after which it was agreed by consent, save for the father who again failed to appear, that the ICL have leave to provide to the Department any material filed or subpoenaed; for the maternal grandmother to file an Amended Initiating Application and both respondents to file an Amended Response and any updating affidavit. I also ordered that for the purpose of an updating family report, the writer conduct observations of the children with the maternal grandmother and allocated further hearing days of 13, 14 and 15 July 2022.

On 24 June 2022 Dr B’s second family report was filed and the hearing resumed on 13 July. During the mother’s cross-examination on Friday 15 July 2022, I became concerned as to the welfare of the children with her. I had been informed that they were in the care of two aunts. I gave leave for the mother’s lawyers to speak with their client and made orders by consent of the parties restraining the mother from spending time or communicating with the children pending further order. I ordered the mother to cause the children to be brought to Court Child Services on Monday 18 July 2022 and ordered that the children not have any contact whatsoever with Mr J. I also ordered the abridgment of time for a subpoena to issue to Queensland Police Service in respect of Mr J returnable on 18 July 2022.
On the Monday morning, 18 July 2022, the maternal grandmother filed an Application in a Proceeding seeking that the children live with her from 3pm that day until 7 September 2022, or until further order; she have sole parental responsibility for the children; and that the children not spend time or communicate with the mother until 7 September 2022. She also sought that the mother be restrained from attending her address, place of work or the children’s school, after school care place or extra-curricular activities, and that she not remove or cause any other person to remove the children from the maternal grandmother’s care, and from disclosing to Mr J her address. Orders were also sought for the children to be enrolled with a Domestic Violence Counselling service.
Before hearing the maternal grandmother’s application, Mr N from the Department was called to give evidence regarding the Department’s recent involvement with the mother and her involvement with Mr J, this will be discussed later in the judgment. Later that afternoon the maternal grandmother’s application was heard and I ordered the children to be released to the maternal grandmother and until further order for them to live with her and for her to have sole parental responsibility for them. I also restrained the mother from spending time or communicating with the children via any manner or asking any other person to do so. The mother was also restrained from removing the children from the maternal grandmother or causing another person to do so. Random drug testing of both parties was ordered and I adjourned the hearing part heard to 1 and 2 September 2022.
In July 2022 and August 2022 the maternal grandmother arranged for the children to spend time with the father and extended paternal family supervised by her. This was the first in person contact the children had experienced with their father since October 2018. She did this in the full knowledge that the mother opposed any time between the children and their father.
On 31 August 2022 the mother filed an Amended Response seeking sole parental responsibility, the children live with her, spend no time with the father and spend time with the maternal grandmother for the first week of each school holiday period and communicate with the maternal grandmother for up to 30 minutes each Sunday evening and on special days. She also sought that the maternal grandmother be restrained from allowing the children to spend time or communicate with the father in any manner. She sought an injunction in relation to herself from having any contact whatsoever with Mr J. She also sought orders restraining both herself and the maternal grandmother from consuming alcohol to excess or using any illicit substances when the children were in their respective care.
In the event the court ordered for the children to live with the maternal grandmother, the mother sought orders for equal shared parental responsibility with the maternal grandmother, or in the event the court ordered the maternal grandmother to have sole parental responsibility, that she first consult with the mother before making a decision. She sought orders for the children to spend time with her every third weekend during school term, the whole of the mid-year school holidays and for the first half of the Christmas school holidays. She continued to seek orders that when the children were in their respective care, neither the maternal grandmother or herself consume alcohol to excess or use illicit substances. She also sought for the children to communicate with her for an hour each Sunday evening and on special days. She sought that both the maternal grandmother and herself be able to attend school and extra‑curricular activities and that they keep each other informed of medical, school and extra‑curricular providers. She continued to seek orders for the children to spend no time and not to communicate in any manner with the father and that the maternal grandmother be restrained from allowing this. The mother also sought orders that she and the children be restrained from having any contact with Mr J.
By consent, I ordered on 1 September 2022 that the maternal grandmother have sole parental responsibility in consultation with both parents and that the children’s time with the mother would re-commence that Saturday, 3 September 2022, at a contact centre or other professional supervision service agreed to with the ICL, at least once per fortnight. The mother’s communication with the children was as agreed with the maternal grandmother but failing agreement for 30 minutes each Wednesday and Saturday supervised by the maternal grandmother.
Similarly, if the father sought to spend time with the children it would be as agreed between the maternal grandmother and the father and supervised by a contact centre or other professional supervision service agreed to with the ICL. The father’s communication with the children was as agreed between himself and the maternal grandmother and supervised by her.
I ordered that no party consume or be under the influence of illicit substances whilst the children were in their care or bring the children into contact with other people who were consuming or under the influence of illicit substances. The parties were to keep each other informed of medical emergencies or major illnesses and were authorised to obtain information about the children from the children’s schools and medical providers. A further family report organised by the ICL was ordered and the matter adjourned to 2 December 2022 for further hearing and for a further five days commencing 13 March 2023.
Dr B’s third family report was filed 19 October 2022.
Following an incident at the City K Children’s Contact Centre on 12 November 2022, the centre ceased to facilitate visits between the mother and the children. A week before the December hearing, the maternal grandmother filed an Application in a Proceeding seeking that the children spend no time and not communicate with the mother.
On 28 November 2022 consent orders were made in chambers for the mother to be permitted to release to her treating psychologist and other health professionals a copy of the first and third family reports and the report of Dr M.
The day before the December hearing the mother filed a Response to the maternal grandmother’s Application in a Proceeding seeking on an interim basis she have sole parental responsibility, the children live with her and spend time with the maternal grandmother the first week of the school holidays and communicate with her each alternate Sunday for up to 30 minutes and on Christmas Day. The mother sought that the maternal grandmother be restrained from allowing the children from spending or communicating with the father outside of any court order.
In the event the court made orders for the children to remain with the maternal grandmother, on an interim basis the mother sought that the maternal grandmother exercise her parental responsibility with consultation with both parents. She sought that her time with the children be each alternate weekends Friday to Sunday, and for two weeks over and including Christmas and that she communicate with the children for 30 minutes each day. If the maternal grandmother was unable to supervise the children whilst in her care, the mother sought the children only be left in the care of a person or organisation approved by the mother.
Regardless where the children resided, the mother sought an order that she and the children be restrained from having any contact whatsoever with Mr J and that she and the maternal grandmother be restrained from using illicit substances.
In my absence on 2 December 2022 his Honour Judge Coates discharged the previous orders made 1 September 2023 regarding the grandmother’s parental responsibility with consultation with the parents and children’s time and communication with the mother. In lieu thereof, his Honour ordered that the mother communicate with the children via video or telephone call for 20 minutes each Wednesday and Saturday, with such calls to be supervised by the maternal grandmother and terminated by her if the mother spoke about court proceedings; spoke negatively about the father or maternal grandmother; suggested that the children’s lack of time with her was the fault of the maternal grandmother or father; question the children about the circumstances in the maternal grandmother’s house or to suggest to the children that they will be returning to her care. The ICL was ordered to explain the orders to the children and that the parties attend updated family report interviews with Dr B.
Dr B’s fourth family report was filed 21 February 2023 and two days later solicitors came onto the record for the father. On 9 March 2023 he filed his first and only affidavit in these proceedings and on the 12^th, a Response. However, on 13 March 2023 the father again failed to attend and his legal representatives sought, and were granted, leave to withdraw. I dismissed his Response filed 12 March 2023 for want of prosecution. I also permitted the mother to provide to her psychologist and other health professionals a copy of Dr B’s fourth report. Prior to resumption of any cross examination, the parties agreed for a number of short videos of the mother’s conversations with the children to be played. Thereafter the maternal grandmother and then the mother were recalled for cross examination, followed by cross examination of the experts and oral submissions.
ORDERS SOUGHT AT THE CONCLUSION OF THE EVIDENCE
At the conclusion of the evidence the ICL argued that orders should be made for the children to live with the maternal grandmother and for her to exercise sole parental responsibility. With the exception of gifts and letters on special occasions the ICL sought that the mother be restrained by injunction from spending time with or communicating with the children. The ICL sought additional protections pursuant to section 68B of the Act for the mother to be of good behaviour towards the maternal grandmother and children, that the mother not approach within 150 metres of the maternal grandmother and children or their residence along with other non-contact provisions. The ICL’s proposed orders also provided for the maternal grandmother to use her best endeavours to ensure the children maintain a relationship with the extended maternal family.
With respect to the father, the ICL sought orders for the father to spend time with the children for up to four hours a fortnight at a contact centre as agreed and to communicate by electronic means as agreed. Exhibit ICL 12 set out the precise minute of order sought by the ICL.
The mother set out three alternate positions at the conclusion of the evidence, a minute of which was admitted as Exhibit M5. The mother’s primary position sought orders for her to exercise sole parental responsibility and for the children to live with her. Her orders would see the children spending time with the maternal grandmother for block time during the school holidays and one weekend per month. The children would communicate electronically with the maternal grandmother twice a week and on special days. The mother also submitted to an injunction that would prevent her from spending time or communicating with Mr J or allowing the children to come into contact with him.
With respect to the children’s time with the father, the mother offered no position.
In the event the Court were to order the children to live with the maternal grandmother the mother sought orders for her and the grandmother to have equal shared parental responsibility. She sought to spend time with the children for the entirety of the Easter, June/July and September holidays and half of the Christmas holidays. She also sought to spend every third weekend with the children as well as communication twice a week.
In the event the Court were to order the maternal grandmother to exercise sole parental responsibility the mother sought orders which would require the maternal grandmother to seek her input and opinion prior to any decision being made.
The maternal grandmother adopted and sought orders as proposed by the ICL in Exhibit ICL12.
MATERIAL RELIED ON
The maternal grandmother relied on:
(a)Her Case Outline filed 29 November 2022;
(b)Her Case Outline filed 5 July 2022;
(c)Her Amended Initiating Application filed 13 May 2022;
(d)Her Application in a Proceeding filed 25 November 2022;
(e)Her Application in a Proceedings filed 18 July 2022;
(f)Her affidavits filed:
(i)1 December 2022;
(ii)25 November 2022;
(iii)18 July 2022;
(iv)5 July 2022;
(v)5 April 2022;
(vi)19 October 2021;
(vii)5 December 2019;
(g)Her Notice of Risk filed 5 December 2019.
The mother relied on:
(a)Her Case Outline filed 1 December 2022;
(b)Her Case Outline filed 28 April 2022;
(c)Her Amended Response filed 12 March 2023;
(d)Her Response to an Application in a Proceeding filed 1 December 2022;
(e)Her Response to an Application in a Proceeding filed 18 July 2022;
(f)Her affidavits filed:
(i)31 March 2022;
(ii)29 April 2022;
(iii)6 July 2022;
(iv)18 July 2022;
(v)30 August 2022;
(vi)2 December 2022;
(g)Her Notice of Risk filed 28 July 2020.
The ICL relied upon:
(a)The family reports of Dr B filed by affidavit on:
(i)3 June 2021;
(ii)24 June 2022;
(iii)19 October 2022;
(iv)21 February 2023.
(b)The report of Dr M filed by affidavit on 20 October 2021.
The father did not attend at any stage of the final hearing. In light of his failure to attend the trial, I have not had regard to any of the father’s filed material.
Mr N, Child Services Officer with the Department gave oral evidence but was not otherwise on affidavit.
A number of documents were tendered into evidence over of the course of the hearing as follows:
(a)ICL 1: Bundle of drug testing results;
(b)ICL 2: Subpoena documents from the Queensland Police Service;
(c)ICL 3: Temporary Protection Order dated 13 July 2022 made at the Town O Magistrates Court;
(d)ICL 4: Tender Bundle;
(e)ICL 5: Updated drug request and resulted schedule;
(f)ICL 6: Aide Memoir from 18 July 2022 to 21 February 2023;
(g)ICL 7: Video recording dated 25 December 2022;
(h)ICL 8: Video recording dated 31 December 2022;
(i)M1: Video recording dated January 2023;
(j)ICL 9: Video recordings dated February;
(k)ICL 10: Letter dated March 2023 from the Town P Women’s Health;
(l)MGM 1: List of recording of zoom meeting between the mother and the children;
(m)M2: Town E Health Service – Emergency Department Clinical Record dated 17 November 2022 relating to X;
(n)M3: Progress notes dated 11 November 2022 from the Town E Community MHS relating to X;
(o)ICL 11: List of documents relied upon by the ICL;
(p)ICL 12: Draft order proposed by the ICL;
(q)M4: List of documents relied upon by the mother;
(r)MGM 2: List of documents relied upon the Maternal Grandmother;
(s)M5: Minute of order sought by the mother.
THE EVIDENCE
In determining this matter I have had regard to all of the written evidence referred to above along with the oral evidence given. Throughout these reasons I will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[12]
[12] Section 140 Evidence Act
Before addressing the evidence in detail it is necessary to consider the credit of the parties. For the most part I found the maternal grandmother presented as an honest and reliable witness. These proceedings were emotionally charged and there were times when the maternal grandmother was overwhelmed when giving her evidence but I was left with the impression that she tried hard to give an honest account of her recollections and made appropriate concessions when warranted. The mother on the other hand was not a credible witness. She often avoided answering questions directly, preferring to make statements, was at times combative and on occasion lied. One example was her emphatic denial that she was in any communication with Mr J during the proceedings, only to be caught out upon a call of her text messages for that day and the day before. Her lying was not confined to her evidence as it became clear during the course of the proceedings that she had previously lied to the police and officers of the Department. Sadly during the proceedings she lied to the children which was captured on video. Whilst I readily accept the mother has a robust and expressive personality and she passionately loves her children, her presentation in the witness box left me with little confidence that I could always accept her evidence. That is not to say that I have rejected the mother’s evidence in its entirety but I found the need to be cautious in determining whether her evidence should be accepted in light of her presentation and her history of lying to those in authority.
In order to determine this matter it is necessary to consider a number of factual issues going back many years. These issues will include the nature of relationships between the parties and others, the history of drug and alcohol consumption, the history of family violence and criminal behaviour, and mental health issues. I will also look at the children’s presentation at school and to professionals, including the family report writer. These considerations cannot easily be undertaken in a purely chronological manner. I will therefore for the most part address the issues thematically. Some facts may relate to more than one theme, if possible I will avoid repetition.
HISTORY OF FAMILY RELATIONSHIPS AND CONFLICT
Family violence and relationship conflict have permeated this family for decades. It is necessary to look at this history to understand the positions of the parties today.
The maternal grandmother married her first husband in 1983 when she was around 20 years of age and pregnant with her eldest child, Mr Q. The maternal grandmother reported that there was no family violence in this relationship and they separated and were amicable until his death in 2020.
The maternal grandmother commenced a relationship with the maternal grandfather in 1988, were married two years later but separated on a final basis in 1995. They are divorced. Both had sons from previous relationships. The mother was born in 1992. The maternal grandmother said her seven year relationship with the maternal grandfather was characterised by family violence which occurred in front of the mother and her half-brothers. Multiple protection orders were taken out naming the maternal grandmother as the aggrieved. There being no evidence to the contrary I accept her evidence.

After separating from the maternal grandfather, the maternal grandmother undertook university studies and in 2001 graduated with tertiary qualifications.
When the mother was around four years old, court orders were made for the mother to live with the maternal grandmother and spend alternate weekends with the maternal grandfather in addition to when the maternal grandmother was either at work or university. The maternal grandmother said the mother was able to see the maternal grandfather frequently but the mother recalled it being problematic with the maternal grandmother restricting her time with the maternal grandfather. I accept that that was the mother’s perception but there being no evidence to establish any deliberate attempt by the maternal grandmother to restrict the mother’s time with the maternal grandfather I am not satisfied that that was the case.
The maternal grandmother said the mother was a difficult child. In the mother’s affidavit filed 31 March 2022 the she said:
[28]… I can recall being locked in a bedroom for hours on a number of occasions when I was around five years old. I can recall kicking the door trying to get out. [Ms Gammill] has stated that she had difficulty handling me.
At age eight, the mother went to reside with the maternal grandfather. The mother and maternal grandmother have different recollections surrounding this.
The maternal grandmother said the mother’s behaviour had been challenging and she had been expressing a desire to live with the maternal grandfather. Agreement was reached between the mother’s parents for the mother to move into his primary care. According to the maternal grandmother she initially spent alternate weekends with the mother but overtime this became less frequent due to the maternal grandfather’s work commitments taking him away. The maternal grandmother also moved with her work.
The mother’s account was that the maternal grandmother “abandoned” her as she no longer wanted her and thereafter she had very little to do with her. Only spending time with her six times in 16 years. I have no doubt the mother has long felt her mother had abandoned her. She retains a lot of anger at her mother flowing from the circumstances surrounding her move to live with her father. Whilst I accept the maternal grandmother’s evidence that initially there was frequent contact between her and the mother I also accept that this time progressed to infrequent time. It is not surprising the mother holds the view that she was abandoned given her young age when this occurred.
When the mother was 10 years old, the maternal grandfather took her to a Child and Youth Mental Health Service where she was diagnosed with anxiety and Attention Deficit Disorder and prescribed medication.
Around 2007 the maternal grandmother moved to Western Australia. When the mother was 15 she visited the maternal grandmother for approximately two weeks. This community was a dry community in that drugs and alcohol were banned. The mother gave evidence that she witnessed the maternal grandmother smoking marijuana and drinking alcohol. The maternal grandmother admitted doing so, but said it occurred on weekends when she was camping. Although I generally accepted the maternal grandmother’s evidence throughout these proceedings I did not accept her evidence on this issue.
Whilst on this visit the mother and maternal grandmother argued to such an extent the police intervened, removing the mother and arranging for her to be cared for by others in the community. Both the mother and maternal grandmother alleged the other was physically aggressive. I accept their evidence.
The mother reported in the first report interviews that when she was approximately 14 or 15 years old (circa 2008), she attended drug diversion however no further details were provided regarding this.
In 2010, when the mother was 17 years old, she had an initial diagnostic assessment of a mental illness complicated by the symptoms of Attention Deficit Hyperactivity Disorder (“ADHD”). There was to be a further assessment as to whether she had another mental illness, but the mother did not follow this up.
In 2010, when the mother was 18, cross protection orders were made between her and the maternal grandfather. The mother was charged with breaching that order in 2011. She claimed the maternal grandfather assaulted her, so she punched and kicked the wall and punched the maternal grandfather in the stomach. The police records reflect that the mother told them that he had “assaulted her, her whole life”. They also recorded that whilst sitting next to the police vehicle, she “punched herself in her own face 4 or 5 times while speaking with the arresting officer”.
Upon inspecting the subpoena material from Queensland Police Service, in her first report, Dr B noted:
[52]There is information related to [Ms Walworth] engaging in aggressive behaviours including toward her father, step-mother and mother.
The maternal grandmother had been in a relationship with Mr R until they separated at some point between June 2021 and April 2022. They had been in a relationship for approximately 20 years although the maternal grandmother noted they were only romantic for the first five years. Mr R and the maternal grandmother remain friends and he assists the maternal grandmother in caring for the children. Until the maternal grandmother moved into a townhouse in 2021, Mr R resided in a mobile home located at the same property as the maternal grandmother’s then residence. The maternal grandmother reported that there had not been any domestic violence in this relationship.
In 2011 when the mother was approximately 19, the mother and father commenced their relationship and in late 2011 the first of many protection orders was made during their eight year on‑again and off‑again relationship. On this occasion during an altercation the father punched the mother in the back of the head, tripped her up, kicked her in the stomach whilst pregnant with X and punched her in the face. A two year protection order was made in 2012. The mother moved to stay with the maternal grandmother in Western Australia for approximately six to eight weeks until she reconciled with the father and returned to City G.
The mother gave evidence that whilst pregnant with X the father was drunk and driving erratically. When she got out of the vehicle he drove the car at her. Further in 2012, again whilst pregnant with X, the father threatened to kill her and whilst brandishing a knife he kicked in the front door. The father was ultimately convicted of this offence and sentenced to nine months imprisonment.
In 2012 the maternal grandmother relocated back to City G, then moved the Town E area, and in 2015 moved to Town S to be closer to her ill mother. She returned to Town E upon her mother’s death in 2019.
The maternal grandmother claimed that following X’s birth in 2012 he would spend two to three nights a week at her house. This was denied by the mother who said no overnight time occurred as the maternal grandmother would drink excessively and use illicit drugs and marijuana. The maternal grandmother did not deny drinking to excess or using illicit drugs but did refute using illicit drugs or marijuana whilst caring for the child.
In mid-2013 when X was approximately 10 months old the father had been looking after the child. When the mother came home she found the child screaming, his nappy pushed to one side and blood in his nappy. The mother left the father and took X to the hospital and reported to the police her concern which included contusions and scratches around the child’s anus. The Department conducted an investigation and it was assessed as “Unsubstantiated – child not in need of protection”.
The mother told the family report writer, that during this period of separation, she had reconciled with a former partner, Mr T. They were together for about six months before she reconciled with the father.
In 2014 the mother gave birth to Y. Four days later, the parties and the maternal grandmother’s partner were at the mother’s residence. An argument arose in which the maternal grandmother claimed the mother, whilst still holding baby Y, charged at her to head butt her. The maternal grandmother admitted to drinking later that evening. She left the property with her partner and the father but returned later and broke the lounge room window in order to gain access to retrieve her belongings. Notwithstanding having left earlier in the evening, the mother claimed she and the children were at home when the maternal grandmother broke the window. The maternal grandmother said that the mother and children were not at the property at the time. This incident resulted in cross protection orders issuing between the mother and maternal grandmother for a period of two years.
When X was around 2 years old, (circa 2015) the father kicked him in the groin leaving a lump after he knocked over one of the father’s beers. The father would not allow the mother to take the child to the doctor and the mother said the lump was there for some time.
Circa 2016 (when Y was approximately 18 months old), the father became agitated while making a late night trip to purchase alcohol. When he got there he got into a “punch up”. Upon returning to the vehicle he drove the car, which had the mother and Y inside, fast towards the store but stopped before hitting anything. The mother then drove the car home.
In 2016 the father lost his job and his drinking escalated. The police took out a protection order for the mother, naming the father as the respondent. The mother and father separated and the mother and children moved to Town P where the mother recounted that she had “formed a healthy relationship”, again with Mr T. This lasted about six months before again reconciling with the father to “make an attempt to salvage the relationship … for the sake of the children”. The mother went on to depose in her affidavit filed 31 March 2022 at paragraph 49:
…Within the first two days of him staying with me he had thrown his keys are me, stabbed the unit's [kitchen appliance] and assaulted me. He hit me. I moved out of my unit and into an older house as I was worried about the property damage [Mr O’Hare] was causing.
Between 2015 and 2017 whilst residing at Town S the maternal grandmother claimed, and the mother refuted, that the children would spend three to four nights a month with her, and that she would travel up to see them once a fortnight for four to seven days. I did not accept the entirety of this evidence. At this time the maternal grandmother was working and caring for her very ill mother. I do however accept that she would see the children from time to time.
In November 2017 the mother made sexual abuse allegations against the father in relation to Y, saying that Y had disclosed that whilst away camping with the father he had “put jam inside her and ate it out”. The mother reported this to the police and they conducted interviews with the father and the children. Initially the mother moved with the children into a refuge and later that month moved to live at the same caravan park as the maternal grandmother at Town S. However, the mother and children returned to City G shortly thereafter when the mother again reconciled with the father and sought to vary the then protection order to allow ongoing contact between them.
In December 2017 the father reported to the police that the mother had informed him that the maternal uncle had told the children what to say. The police were unable to contact the mother and the matter did not progress further due to the lack of evidence.
Prior to these proceedings, the maternal grandmother had not had contact with the mother or children since January 2018.
According to the mother, in 2018 the father’s drinking again worsened such that he would urinate wherever he was, including one time on Y whilst she slept in her bed and that he also defecated and smeared faeces over the walls of their home.
A variation to an existing protection order was made in January 2018 and remained in effect until November 2018. Notwithstanding this, in April 2018 during an argument in front of X, the father threatened to knock the mother’s head off her shoulders. He then picked up a lump of wood from outside and returned inside threatening to kill the mother. He ran at her and punched her in the head and upper body. The mother started to run away but he grabbed her by the hair and pulled her into the kitchen where he continued to assault her including attempting to strangle her and threatening to kill her. This incident left the mother with a black eye, bruises and scratches on her neck and back.
In front of both children in late 2018 the mother and father argued over money. The father got a knife from the kitchen and threatened to kill the mother and threw the knife. He then pulled her by the hair to the ground and kicked her in the back of her head. When the mother stood up he punched her several times. The mother called for X to call the police but the father grabbed the phone out of his hands, threw it at him, missing his head. X was screaming for the father to stop so the father grabbed him and threw him on the lounge then left the house. The Department were notified of this incident and later found that it was substantiated but no further action was recommend as the Departmental officers believed the mother and father were no longer in a relationship.
The mother contacted a domestic violence service the following day but did not stay at the refuge they had arranged for her and the children because when returning to collect her possessions from the house she found a note from the father saying that she and the children could stay at the house and he would find alternate accommodation.
Two weeks later, the father telephoned the mother threatening to burn down the house with her and the children in it and told the mother that he had contacted the fire brigade and police advising them that he had placed a bomb in the house. The fire and police services arrived and evacuated them from the home whilst they undertook a search of the premises. During the call the mother said the father appeared to be non-coherent and likely affected by alcohol and/or drugs. This was the date she ascribed to their final separation.
In late 2018 the father reached out to a mental health service where he reported that he felt depressed and would self-medicate with alcohol until he passed out.
In mid-2019 the mother presented at the police station with the children saying that in 2013 X was too young to communicate however he had since disclosed that the father had put his fingers around the child’s bottom. When interviewed, X said the father had smacked his bottom but made no further disclosure and the police noted there was no evidence of an offence.
In 2020 the mother met Mr J. Her relationship with Mr J involved significant violence and will be discussed in more detail separately in this judgment.
In late 2020 the mother and children relocated from City G to Town U. Late the following year the maternal grandmother moved into a rented three bedroom townhouse in Town E.
In October 2021 a physical altercation occurred between the mother and the maternal grandfather which included each punching the other, kicking and the maternal grandfather holding the mother in a choke hold resulting in the police applying for cross protection orders.
In late 2022 the mother relocated from Town U to Town O.
Mother and father
As addressed above, the relationship between the mother and the father was characterised by significant domestic violence and they reported in the first family report interviews:
[45][Ms Walworth] reported that [Mr O’Hare] had perpetrated significant physical violence toward her including punching her, throwing her down the stairs, kicking her in the head, chasing her with a knife and a chainsaw, holding a knife to her throat, and driving his car at the children and her. He had also made threats to harm her. [Ms Walworth] said that [Mr O’Hare] was always aggressive and would swing from being somewhat rational to out of control very quickly. It was worse when he was drinking.
[46][Mr O’Hare] described mutual verbal abuse escalating on occasion to pushing and shoving each other. He said that when they had an argument that it was over for him. However, [Ms Walworth] would not let it go and would keep at it, even chasing him up the road if he left the house.
During the first report interviews the mother told Dr B:
[97]… that she had spent nine years trying to keep out of trouble from [Mr O’Hare]. She had not gone to hospital for medical treatment to protect him.
The mother said the children were exposed to the father’s verbal abuse of her and witnessed him physically abuse her. Dr B noted in her first report:
[58] Information from the Department of Child Safety reported that the family had a child protection history dating from 2011. There have been 12 Child Concern Reports and two Child Protection Notifications related to the children's exposure to domestic violence including verbal, physical and sexual abuse, parental mental health issues, alcohol and substance abuse. It was noted that [Ms Walworth] had been offered referrals to services however declined.
The mother deposed in her affidavit filed 31 March 2022:
[71]… I have always acted to protect the children from [Mr O’Hare]. I have put myself in situation where I would take the brunt of [Mr O’Hare]’s behaviour to protect the children.
In the third report, the maternal grandmother reported that the children “had made comments that indicated that they remembered specific incidents where they had witnessed [Mr O’Hare] being violent toward their mother”.
The mother said there were numerous acts of domestic violence but she did not report them all to the police because she did not want the same thing for her children that she experienced with her mother. She told the family report writer and confirmed in her evidence that she felt like she had to keep trying in her relationship for the children to have both parents. Under cross examination the mother also admitted that she didn’t report incidents of family violence because she feared the Department would become involved with her family. I accept her evidence in this regard.
Dr B recorded in her first report:
[98][Ms Walworth] said that she had reconciled with [Mr O’Hare] because he would beg her and tell her that he had changed. She had also had a nasty split in her own family and grew up without a mother. [Ms Walworth] said that she tried not to let that happen to her own children. It was now an instant reflex for her to defend herself and she was never going to be in that situation ever again.
During periods of separation from the father, the mother would at times reconcile with her former on‑again and off‑again partner, Mr T.
The father believed that the maternal grandfather had told the mother negative things about the maternal grandmother, and that this cycle was repeating itself with the mother telling the children negative things about him. In the first report interviews Dr B noted the children’s comments:
[170][X] said "we wanted to get away from him". [Y] said "we lost everything because of [Mr O’Hare]". The Report Writer had been referring to [Mr O’Hare] as "Dad" and [Ms Gammill] as "your grandmother". [Y] said "I don't want to be rude but you can you not call him Dad?" X said "and call [Ms Gammill], [Ms Gammill]". The Report Writer asked when they had started referring to [Mr O’Hare] by his first name. The children said that this started after the final separation. [X] said "because he's not a Dad to us", "[Ms Gammill] not been a grandma to us".
There have been a total on six protection orders made between the mother and father with the father named as the Respondent to each order. Protection orders were made in 2011, 2013, 2014, 2016, 2018 and 2019. X and Y are named as protected persons to all orders included Y as an unborn child in 2011. The last protection order made in September 2019 expired in November 2021. There are now no operative protection orders as between the mother and father.

Following the 2018 fire and bomb threat, save for one occasion, which the father was breached for, the father and mother did not have any further communication until the month before the beginning of the trial. In April 2022 the father messaged the mother via a dating website and Facebook. Not all the messages were tendered but in the website messages the mother told the father:
Just an fyi I don’t want to speak to you under any circumstances what you did to [X] and [Y] and me I’ll never condone or even forgive so get on your bike and keep peddling
Pay some child support instead of trolling dating sites
I showed the kids your photos. They have their own opinions. [X] gagged and took off and [Y] said what she said and walked away! You’re responsible for the hurt and brokenness of both of them and that’s why I hate you!
The father responded addressing child support and also said:
So be it if you three hate me I can’t turn back time so that’s something I have to accept I will always love them that’s the only thing I have to hold on to and memories. Have a good day.
In the first report the father said he “wanted to have a mature and civil relationship with her so he could see the children”. Notwithstanding this, in his Facebook message of April 2022 the father messaged:
Miss ya [Ms Walworth] you know Il always stand by you even after all the fellas you go through mate. Love ya you are just a female version of me so how can I be angry bbear last message from me goodbye or call now I’m ready for bed
…
What’s your number
Or call me now before bed
The mother ended the conversation by messaging:
Been busy with kids and [Mr J]
I’m not real comfortable with the whole I love you and miss you spiel you sent
…
… my position hasn’t changed. You can try to make me the villain of the situation as much you like … I’m blocking you now.
In November 2022, after the children had been moved into the maternal grandmother’s care, the father and mother exchanged text messages in which the mother said she had asked the father to participate in these proceedings, to help her and to help the children, notwithstanding that, she maintained the firm view that the children not communicate or spend time with him.
Mother and maternal grandmother
Both the maternal grandmother and mother described their relationship as “highly conflictual” and the maternal grandmother agreed it was strained for over 20 years and bad for the past five to six years.
The mother, in her affidavit filed 31 March 2022, said:
[29]…I say I have been damaged by the things that [Ms Gammill] did to me when I was growing up and I do not want my children exposed to the potential for the same damage. [Ms Gammill] abandoned me when I was 8 and had very little to do with me for 16 years.
The maternal grandmother said the mother’s behaviour had always been challenging and she would be aggressive towards her. She attributed the mother’s diagnosis of ADHD and having learned the domestically violent behaviours of the maternal grandfather as factors in their difficult mother/daughter relationship.
Both the maternal grandmother and the father reported that the maternal grandfather had intentionally said negatively things about the maternal grandmother to the mother. The mother appeared to confirm at least some manipulation by the maternal grandfather when she told Dr B in the first report that the maternal grandfather had told her that if she returned to the maternal grandmother she would never see him again.
The mother deposed in her affidavit filed 6 July 2022:
[19]…I agree that my relationship with [Ms Gammill] has been characterised by conflict, however I say that [Ms Gammill] has also been aggressive and violent towards me, hence the cross domestic violence orders.
In late 2014 arising from an argument which the maternal grandmother broke a window at the mother’s home, they each sought a protection order against the other. In the maternal grandmother’s application she wrote:
I do not want contact from or with [Ms Walworth]. [Ms Walworth] is renowned for abusive phone calls & texts.
Similarly in the mother’s application she wrote:
I WANT NO contact from [Ms Gammill] between myself and her and or my children [X] and [Y].
The maternal grandmother told Dr B in the first report that she had previously suggested to the mother that they attend counselling in an effort repair their relationship but the mother refused. The maternal grandmother went on to say:
[105]… that she did not want to have any relationship with [Ms Walworth]. She said that she had put up with her aggression for years so that she could maintain a relationship with the children and keep an eye on them. [Ms Gammill] said "I do not want her anywhere near me anymore ... happy not to have her in my life, having her in my life means that I am allowing myself to be abused."
Dr B opined in her first report:
[202]Although the relationship between [Ms Gammill] and [Ms Walworth] has been characterised by conflict and appears to be irretrievably broken down, the grandmother did spend substantial time with [X] and [Y] prior to December 2017. [Ms Walworth] trusted her mother then to provide appropriate care to them. She could not provide any substantial reasons for ceasing [X] and [Y]'s time with [Ms Gammill]. This decision seems to be the result of the difficulties in the dynamics of their complex relationship.
Throughout the proceedings the mother has held an unwavering negative view of the maternal grandmother describing her as “conniving, untrustworthy and manipulative”. She also was worried about the level of care the maternal grandmother could provide the children because of her own experience, notwithstanding that she had not lived with the maternal grandmother since she was approximately eight years old, some 22 years ago. In fairness to the mother, though, it is not surprising she holds this view given her perception around the maternal grandmother “abandoning her” as a child. I accept that the mother’s views are honestly held even if not objectively supported on the evidence.
The second family report was prepared a month after the maternal grandmother changed the final orders she sought from spending time with orders to seeking orders that the children live with her and spend supervised time with the mother. During those interviews the mother expressed her frustration that the maternal grandmother wanted to be involved with the children when she “could not be a reasonable parent to either of her own children”. The mother’s view on this had clearly been conveyed to the children as Dr B noted:
[108] The children said that they did not want to see [Ms Gammill]. [Y] said “nope, not at all. She lives in a caravan”. [X] said “probably not because she didn’t even look after Mum…not right that she wants to see us because she didn’t want to raise her and now wants to take us and raise us”…
The third report has conducted in October 2022, three months after the children moved to live with the maternal grandmother. Dr B stated at paragraph 49:
[Ms Gammill] said that after the children and her left Court in July 2022, [X] told her he needed to tell her something. He disclosed that his mother told him that if the children went into [Ms Gammill]’s care that [Ms Walworth] would find her and kill her. [Ms Gammill] said that [X] had been upset.
Y corroborated the maternal grandmother’s account which was recorded by Dr B at paragraph 83:
[Y] was asked if she had heard [X] tell [Ms Gammill] that their mother was going to hurt her. [Y] got teary and said yes. She had heard [X] say that however she had not heard her mother say it. [Y] then asked if it was time to stop the interview yet. The Report Writer asked her the reason that she was upset. [Y] said “flashbacks…[Mr J] hurting Mum”.
In order to assist with the children settling into the grandmother’s care, the orders made on 18 July 2022 provided for a moratorium of the mother communicating and spending any time with the children. However it did not take long after the moratorium ceased to apply on 1 September 2022, for the maternal grandmother to feel that the mother was undermining the placement. The first visit occurred on 5 September. The mother told the children that the maternal grandmother was responsible for them being removed from her. After video calls the children would question the maternal grandmother on the level of care she provided the mother when she was a child. They also told their grandmother that she had to tell her solicitors to withdraw her application.
On 7 September, through their lawyers, the maternal grandmother sought an undertaking from the mother that inter alia she not excessively text message the maternal grandmother as “an opportunity to constantly harass and vent”. The harassing text messages continued. On 20 September the maternal grandmother again sought the undertaking and if not given she would block the mother’s number. On 23 September the mother’s lawyers advised that the mother would not sign the proposed undertaking. The maternal grandmother ultimately blocked the mother’s number.
Voluminous text messages from the mother to the maternal grandmother over a three day period in the first week of September 2022 was annexed to the maternal grandmother’s affidavit filed 25 November 2022. Some of the mother’s messages are set out below:
[X] and [Y] are little humans with names, a mother, a home, pets and their own personalities.
They’re not items they’re people! Little people I conceived, I carried I birthed and I’ve raised to be themselves.
They’re worth so much more than what they’re being dragged through.
There’s no need for any of this and they do not deserve it either and the hurt will never be forgotten or forgiven. …
I doubt any of [X] and [Y]'s and my family would want to speak to you to be able to speak with [X] and [Y] after all the years of history and the things you’ve done to any of them or me and the current circumstances you’ve created however I’ll let of your demands for your suitability they’ll most likely put [X] and [Y] above their resentment for you.
… their living through this is not something they’ve wanted or asked for rather something you’ve demanded
…
As for the shoes, no need to thank me I’m simply providing for my kids where you’re failing to do so. They’re my kids it’s my job and my responsibility to ensure they have what they need regardless of your demanding to take that away from them and I or not.
…
Not sure if you’ve realised I was your kid.
Not [X] and [Y], me!
You failed me all my childhood and you’re failing me all my adult life too, this i why I have had nothing to do with you amoung other reasons.
Now you’re failing my kids too you weren’t happy enough with two kids your failed.
Seems like you’ve really cared for and loved me, I was only born to secure what dad had you could take and that’s clear and obvious.
No mother would ever do this.
Where’s my brother? Oh good job there.
Only reason I am who I am and all I have been and all I’m yet to become is because of my parents and that’s my dad and his wife my mum.
Anybody can birth a life or plant the seed but takes a parent to raise the life they created.
I will never stop fighting for the lives I live for!
I’m aware this may not help me legally but I think it’s important for you to know the memories I have of the time you were responsible for my life are horrible, I was constantly rattled in head lice, to get a jumper or a warm piece of clothing I had to rely on dad providing those things to me because you wasted child support money on yourself, I don’t remember cooked meals, I remember being baby sat on your visitation weekends, I remember all your druggo mates and those being the only adventure I ever experienced, I remember scaling the screen door distraught to get to my dad and you not allowing me to get to him, I remember going without, I remember cutting myself on the soap holder because you couldn’t make the house safe, I remember boarders giving me more time and care than you ever did.
I don’t trust you with my kids lives and you’re only traumatising them as you did to me but you think you’re doing wonders news flash you didn’t have an upbringing like you dragged me through and you didn’t have the upbringing you’re forcibly dragging [X] and [Y] through.
You must be really proud of your parenting over the last 30 years of my life!
The best thing you ever did for me was leave for Western Australia. The worst thing you’ve done for me is come back to Queensland you’ve caused nothing but hell.
My Dad raised me right, he made sure I could drive, i knew how to fish, I knew how to cook, I could ride a motorbike, I could swim, I could bounce a ball, made sure I had a proper education, met every one of my needs, made sure I had a respectable upbringing. Did his all to make sure I never suffered, My parents did all of that for me. You did nothing but mess me up. You’re making mine suffer and making sure you manipulate the situation to suit yourself when I don’t think of myself I purely think of my kids. You can use all of this against me but they’re FACTS.
This is my last message to you the rest of the communication is purely [X] and [Y] related.
I need you to know I could never ever do this to [X] and [Y] not now and not when they’re grown and have their own families, I’ll support, I’ll help, I’ll care, I’ll love and I’ll do all I can but this you’re doing right here I would NEVER DO because I genuinely love and care about [X] and [Y].
If you did you could t do what you are.
…
You sent the email address through. What’s this [email for] business. I’ve got my own email address just as you have your won email address. I don’t have time for you creating email addresses with my name or abbreviations to suit … your majesty
…
In future you can contact my lawyer to contact me in relation to any contact sports, any risky activities where my kids can be physically hurt, activities such as the one you are allowing tomorrow [sports] can be fatal if you do not know what you are doing or the animal chooses to react in uncontrollable ways, I do not know the [animal] therefore I can’t assess if my daughter is safe to partake in the activity and you wouldn’t have a clue about [sports] so how can you make that judgment, you’re doing it because you know I’ve taught my kids all they know about [animals] and this is considered a major decision so prior to you undermining my parenting or ability to parent you can in future discuss these things given you’re not even their parent. [Sports]?! What was your motive when you thought of [sports]? Oh that’s mine and my daughters that’s why! You’re not trained and you do not have adequate experience or knowledge. Does the owner have liability insurance? Is my daughter safe? You have NO TRAINING, NO KNOWLEDGE OF LIVESTOCK OR EXPERIENCE AND THAT ANIMAL HAS A MIND OF ITS OWN! I’m not going to shatter her excitement or her heart but YOU SHOULDVE USED YOUR HEAD HERE!
….
I WILL NEVER FORGIVE YOU FOR DOING THIS TO [X] AND [Y] OR FOR TAKING MY LIFE AND KILLING ME EVERY SINGLE WAKING DAY SINCE […]! NEVER! IF IM FORCED TO DEAL WITH YOU JUST KNOW DEEP DOWN REGARDLESS OF MATURITY AND BEING CIVIL AFTER ALL THE HURT, THIS WHAT YOURE DOING TO [X] AND [Y] AND TO ME, I WILL TAKE TO MY GRAVE NEVER FORGIVING YOU FOR! EVERY DAY OF TEN YEARS IVE LIVED AND BREATHED FOR [X] AND [Y] AND YOU WOULD HAVE DONE BETTER JUST CUTTING MY HEART OUT AND TAKING MY LUNGS!
In cross examination the mother said:
I’m happy to go to relationship counselling so that we can both be civil for the sake of the kids. I refuse to repair the relationship. It’s done.
I don’t want a relationship with that woman. I do no longer trust her. After what she has put my kids through, what she has put me through, the amount of times I’ve tried to reconcile, the amount of times that I have reconciled and it has blown up in my face. It’s a risk that I’m not willing to take for myself. I don’t need to find myself in trouble because she has decided that I’ve spoken to her how she doesn’t like or said something she doesn’t want to hear, because that’s the reality of it and our relationship.
After saying the above, the mother claimed she would promote the children having a relationship with the maternal grandmother only to go on to concede there would be little chance that she would be able to promote a positive relationship with the maternal grandmother because of her “deep-seated dislike” for the maternal grandmother.
In the third family report interviews, Dr B recorded the mother saying:
[59] … although she did not like Child Safety that she would rather that [X] and [Y] were in foster care than with [Ms Gammill]. [Ms Walworth] said that she had no desire to repair her relationship with [Ms Gammill].
The mother’s position remained that way at the conclusion of the trial. I find that there is no prospect of the mother and the maternal grandmother repairing their relationship. They are unable to communicate effectively. The mother does not trust the maternal grandmother. Although the conflict goes both ways it is the mother’s inability to contemplate any form of reconciliation or counselling that makes it impossible for the two women to move forward in a positive manner.
Mother and maternal grandfather and step-mother
The mother’s recollection of her parents’ relationship was that they separated when she was young and that the maternal grandfather had “lost most of his possessions” through court proceedings initiated by the maternal grandmother and that after separation the maternal grandmother prevented her from seeing the maternal grandfather. The maternal grandfather re‑partnered when the mother was about five years old. The mother recalled in the first family report interviews that when she went to live with the maternal grandfather she “knew what a normal family was because of living with him and his partner”.
The mother completed years 10 and 11 as a boarder at V School and told the Dr B in the first family report “that she did not like being away from her father. She was asked to leave [V School].” It was not clear as to why the mother was asked to leave the school but the mother reported that she “passed her subjects however struggled with not having a mother” notwithstanding having told Dr B that she considered her step-mother “to be her mother and called her Mum”.
In 2010 cross protection orders were made between the mother and the maternal grandfather. The mother breached her protection order in 2011 when there was a physical altercation between her and maternal grandfather which included punching and kicking.
Unfortunately that conflict is not just historic. During these proceedings, on 16 October 2021 a physical altercation occurred between the mother and the maternal grandfather resulting in the police applying for cross protection orders. The police records reflect that it “was a heated yelling match which spilled outside”. The maternal grandfather said the argument arose when the mother’s relationship with Mr J was raised. The mother said the argument arose when maternal grandfather belittled her for being “a school dropout”. The pair punched each other, including in the face, he pushed her back against his vehicle, she kicked him and he held her in a rear choke hold and threatened to kill her. After the incident the mother went inside, woke the children and drove off with them and later sent abusive and threatening text messages to the maternal grandfather. A five year protection order was made against the mother and a two year order made against the maternal grandfather.
At the second report interviews the Dr B noted at paragraph 109:
The children said that they saw their grandfather and step-grandmother a lot. They looked after them when their mother had to go to Court and took them camping during school holidays. [Y] seemed wary when the Report Writer asked about her mother and grandfather having a fight. She said that they were asleep. [X] said that his mother had “a big black eye” because his grandfather had punched her in the face. They had stopped seeing them for a while “everything is ok now”.

Dr B went on to recommend the children live with the grandmother and spend shorter periods of time with their parents.
When the report writer completed her final report in February 2023 she maintained her recommendation for the children to live with the maternal grandmother but could not make any recommendations for the children’s time with their mother. She was scathing in her assessment of the mother:
[81][Ms Walworth] demonstrates a narcissistic belief in her own superiority as a person and in her knowledge as a parent despite significant evidence that [X] and [Y] have been harmed and continue to be harmed in her care. She lacks empathy for their position and is unwilling to consider their emotional world. [Ms Walworth] appears to have a sense of ownership of [X] and [Y]. Their value to her appears to be as her possessions rather than for who they are or what they need.
Unfortunately when I take into account all of the evidence and the mother’s presentation and responses in court I come to the same conclusion. Dr B’s view was fortified after seeing the videos. In her oral evidence she said she did not support a continuation of the video calls. In response to a question from me in relation to the videos, she said:
‑‑‑I found them very distressing to be. They certainly weren’t child-focused. I think there was a couple of times that I was very concerned that the mother may be of undue influence during those conversations, that the content of the conversation, the continual refocus – ignoring of the children’s attempts to talk about other things, the refocus onto what he – she considered were appropriate topics, the dismissal of the children’s distress, the continual denigration of the grandmother. No, they weren’t child-focused, they weren’t appropriate. And I know the children love their mother but I was very concerned to see how, you know, the boy – you know, how he was reacting to his mother. And I really am concerned with [X], if he continues this way, he will – he will completely reject her. I thought they were awful. And I – I – if that’s the way the conversations go, I can’t support them continuing ‑ ‑ ‑
Dr B recommended the children continue to see their father in a supervised capacity and before any consideration of a move away from supervision the father would need to complete CDT testing for alcohol and illicit drug use.
FATHER’S RELATIONSHIP WITH THE CHILDREN
The mother and father separated on a final basis in October 2018. The children spent no time with the father from separation until 30 July 2022. Dr B noted in her second report that the children had a telephone call with the father in April 2022. Contact was initiated by the mother who called to enquire if the father was aware the maternal grandmother was seeking that the children live with her. The father told Dr B the call with the children went well however the mother frequently interrupted. He stated the children became friendly with him throughout the call and by the end of the call they indicated they would like to visit him.
The children resided with the maternal grandmother from mid-2022. In mid-2022 she arranged for the children to spend time with the father and paternal grandmother. In August 2022 the children spent time with the father and the paternal grandfather. The maternal grandmother advised Dr B that she was present and supervised this time.
The records from the City K Children’s Contract Centre show that the time between the children and the father was positive and unremarkable. Although before the Court were records of only two visits the notes indicate the children enjoyed their time with the father. He was noted to have considered the needs of both children, balanced his attention between them and was led by the activities the children were engaged in.
DETERMINING THE BEST INTERESTS OF THE CHILDREN - THE S.60CC CONSIDERATIONS
The court is required to determine a child's best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
THE CHILDREN'S RELATIONSHIPS[14]
[14] Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
Section 60CC(2)(a), a primary consideration, requires the court to consider the benefit to the children of having a meaningful relationship with both parents. Although this case was primarily concerned with whether the children should live with their maternal grandmother or the mother I propose to address the benefit of the children’s relationships with their parents first.
There is no doubt that the children love their mother deeply. She has been their primary carer for the vast majority of their lives. The mother also loves them. Notwithstanding that love, their relationship with her has been compromised by their lived experience. They have been fearful in her home as a consequence of violence, not only from their father but also Mr J and their mother. They fear for their mother’s safety. They have also come to doubt their mother’s truthfulness to the point of challenging her not to lie to them.
Her lack of positive engagement with them at times, as seen in the video calls and in front of the family report writer, suggests the mother lacks the capacity to always be child focused and meet the children’s developmental and psychological needs. I don’t want that finding to suggest the mother is incapable of meeting those needs, there clearly have been times when she has been child focussed but the incidents of her own dysregulation and self-focus have come to the fore far too often causing the children distress. This in turn calls into question the benefit the children would gain from their relationship with their mother. They clearly miss her but their recent experiences of seeing their mother either at a contact centre or on video calls have been distressing for them. There is no benefit for them in that dynamic continuing. The family report writer having seen the family through four sets of interviews and watched the tendered videos recommended a cessation of their relationship with the mother. She opined that nothing much would change unless the mother could address the issues surrounding her personality and interactions with the children. In her view the mother lacked insight into the effects on the children by her presentation and engagement. I share that view and note Dr M also held the view that nothing would change unless the mother was able to address her personality.
Regrettably I have formed the view that the children would not receive any positive benefit from spending time or communicating with their mother. It disappoints me to make that finding but it could not be said to be in the children’s best interests to be again exposed to their mother’s conduct. Her inability to take direction from the staff at the contact centre means that any prospect of putting in a safety mechanism through supervised time will not save the children from distress.
The children’s relationship with their father has only resumed in the last twelve months. It would appear that by spending time with him they have moved from their strongly held negative views of him. That is not to say they have developed a close and loving relationship with him. X in particular still has memories of violence whilst living with him. The proposal by the ICL and the maternal grandmother would provide limited supervised time with the father that would go towards the children continuing to develop their relationship with him in a safe environment.
At the conclusion of the trial the ICL sought orders for the father to spend time with the children for up to four hours a fortnight at a professional contact centre as agreed between the father and maternal grandmother and electronic communication as agreed. Counsel for the ICL highlighted the multitude the known unknowns with respect to his criminal history, drug and alcohol abuse and capacity to parent. It was submitted that the father’s time should always be professionally supervised, never be unsupervised or supervised by the maternal grandmother or other family members. It was submitted that to move beyond this point the father would need to present before the Court to have those issues examined.
Counsel for the ICL submitted that the children perceived value in their relationship with the father and although young the Court should have regard to their wishes. Counsel highlighted the difficult road ahead for these children should their mother be removed from their lives. In that context, it was submitted it was important to leave the door open to allow the children to maintain a relationship with the father in a protected way.
The mother sought no specific order with respect to the children’s time with father but submitted that she would comply with any orders for time the Court ordered. Counsel for the mother made submissions that notwithstanding the history between the mother and father she had given evidence that now that the children have been reintroduced to him she believed it was in their best interest to continue that time.
The father’s failure to attend court has given me cause for concern as to his commitment in maintaining a relationship with the children. On one view of things it might be prudent not to make any order for the children to spend time with him. However that would enable the father and maternal grandmother to make their own arrangements. Given the history of violence which I will address in the next consideration I am satisfied that it would be prudent to make orders restricting any time the children spend with him to a professional contact service. If this was to occur the children would benefit from developing their relationship with him in a protective manner. They will gain an understanding of their paternal identity through these visits. They will benefit from that. Long term supervision is not usually beneficial for children but without the father’s engagement in these proceedings it is not possible to discern a better way forward for the children in their relationship with him.
The children’s relationship with the grandmother has changed throughout these proceedings. Initially the children would not call her their grandmother, insisting that others also refer to her as Ms Gammill. They had taken on board all that the mother had told them. Having now been living with her for some months they have developed a different view. X told the family report writer in the last round of interviews that living with his grandmother was good. He said that his grandmother did not say negative things about his mother. This was confirmed by Y. They both said that their mother was negative about the grandmother and they wanted it to stop. I find that the children have quickly developed a positive relationship with their grandmother after years of hearing only bad things about her. In their view if they were to return to their mother’s primary care they would still want to see their grandmother and father. Unfortunately I have no confidence the mother would support those relationships. She was very clear about her hatred for her mother. I acknowledge in her final orders sought tendered at the end of the trial she proposed a regime that would see the children see their grandmother, however I find she would be unable to live up to that.
When I factor in these considerations and the competing proposals of the parties I am satisfied that the ICL’s and maternal grandmother’s proposals would be preferred.
RISK OF HARM[15]
[15] 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 need to protect children from any risk of harm is also a primary consideration. It has played a significant role in these proceedings. The children have been exposed to violence in the mother’s home both with the father and Mr J. Whilst the mother has wanted to protect the children she has been unable to do so. It is not necessary for me to repeat the evidence set out earlier in this judgment. The mother’s inability to be truthful to different authorities and this court means I can have no confidence that she will be able to protect the children from further exposure in the future. The mother has herself placed the children at risk by her own conduct such as driving recklessly around town of an evening with the children in the car searching for Mr J. The children have witnessed the mother burn Mr J’s possessions and damage vehicles. The mother has been psychologically abusive to the children in communications with them both at the contact centre and on the video calls. I find that the children are at an unacceptable risk of harm in the mother’s care. That harm being primarily of a psychological nature but also of a physical nature.
In making that finding I now need to turn to consider ways in which that risk of harm can be ameliorated. The court had made orders for the mother to spend supervised time with the children. This is the usual way in which the court can ensure children are not exposed to risk of harm issues. However in this case the mother was not able to follow the directions of the staff and made difficult visits worse, particularly the last visit which caused the contact centre to withdraw their services. I have no confidence the mother has sufficient insight to change her behaviour. This leads me to conclude that it is not possible to ameliorate the risk of harm the children would be exposed to if they were to have physical visits with her. I make the same finding in relation to telephone and video calls.
When I assess this consideration I am satisfied that the ICL’s and maternal grandmother’s position is to be preferred to any of the mother’s proposals.
I am also satisfied that there are real risk of harm issues for these children in their father’s care. He has exposed them to violence with their mother. On the evidence I cannot be satisfied that his conduct has changed such that the children should be left alone with him. His failure to prosecute his case did not help with this assessment. I am however satisfied that his supervised visits have been positive for the children. Supervision in his case would ameliorate the risk of harm and I am therefore satisfied that it would be appropriate to make orders providing for any time the children spend with him be supervised.
The mother raised historic risk of harm issues in relation to the maternal grandmother. I accept the maternal grandmother has had a history of illicit drug and alcohol use. However there is no evidence of this being a present concern. I do not find any risk of harm issues in the maternal grandmother’s household.
THE CHILDREN'S VIEWS[16]
[16] Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
The children have been through a lot in their young lives. It is clear that they both want a relationship with the maternal grandmother, the mother and the father. X told the report writer in February 2023 that he wanted to live with his mother but not all the time. He said:
I don’t want to be with her and not see Grandma or my father I want to be able to see all my family.
Y wants to live with her mother but also see her grandmother. She said “I want to live with Mum….the dogs are getting older and they’re going to die soon so I want to see them before they die”. In relation to her seeing her grandmother Y said “I’d want to see her but I really miss Mum as well and I want to live with her because the dogs don’t have many years left without me seeing them….and Mum has a new dog”.
Y also said it had been good to see her father and to have video calls with him. She went on to say “I want to be able to see everyone, I want them (grandma and Mum) to sort things out but I don’t think that is going to happen”.
Both children expressed very strong views that they wanted their mother to stop the negativity towards their grandmother.
At the time of expressing those views X was 10 years old and Y was 8 years. In determining what weight I should give to their views I take into account that they are both young children who do not yet have the maturity to fully understand the consequences of their wishes. Having said that I have no doubt these children are missing their mum. They care for her deeply as you would expect. They have been and probably remain fearful for her safety. They are tired of all the conflict. They want to see their grandmother and their father. It is important to listen to their views.
The children’s desire to live with their mother have weighed heavily on my mind however I am satisfied that this consideration needs to give way to the two primary considerations discussed above given the nature of their relationships and the serious of the risk of harm issues.
PRACTICAL DIFFICULTIES[17]
[17] Section 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
All parties live some distance from each other. The grandmother lives in Town E, the mother in another part of Queensland and the father in City G. The mother told the family report writer that she would not consider relocating closer to the maternal grandmother’s home. I make no criticism of the mother for taking that position. Although it has been fraught, she has the support of her father and step-mother nearby. Whilst the tyranny of distance adds to the complexity of this matter it is of a lesser consideration than the factors considered above. If I was to make an order for the children to live with the maternal grandmother and spend supervised time with the mother such time would need to take place in City K. This would involve some travel for the grandmother and children and even longer travel for the mother. Notwithstanding this I am satisfied the mother would do the travel in order to see the children. If I was to order the children to live with the mother and spend time with the maternal grandmother, there will be travel involved for both parties and the children. That though would not be insurmountable. It may limit mid school term time to only one or two weekends in their local area or close by but should not impact school holiday time.
The father will also be able to travel to City K to spend supervised time with the children as he has shown his capacity to do so in the past. It may also be possible for any supervised time to occur at a contact centre nearer to City G.
PARENTAL CAPACITY AND RESPONSIBILITY[18]
[18] Section 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
I have no doubt that both the mother and the maternal grandmother have the capacity to provide for the children’s day to day needs such as feeding, clothing and housing them. The children missed a lot of school days when living with their mother which raises some concern as to her ability to ensure they attend to their education appropriately. I have no concern in that regard for the children in their maternal grandmother’s home.
The transition to the grandmother’s home has not been without its difficulties particularly for X who has continued to exhibit difficult behaviour at school and at home. Despite this, the grandmother appears to have engaged appropriately with the school and X’s treating professionals. She has followed up with necessary appointments and has monitored his medication. This was not always the case in the mother’s household.

The significant concern, touched on earlier, is the mother’s capacity to meet the children’s emotional and psychological needs. She does not have the insight necessary to appreciate how the children have been negatively affected by her conduct. The video calls showed an inability on her part to be child focussed. She was very self-focussed in her interactions with the children insisting they discuss issues she held to be important but which troubled them greatly.
The mother’s conduct in driving recklessly with the children of a night in pursuit of Mr J, her aggressive conduct with him, her lying to the police and the Department have all contributed harm to the children. She has also failed to follow up with X’s medical needs at times. I find that the mother does not have the capacity, currently, to approach life any differently. Armed with the knowledge that her parenting was being assessed by this court the mother continued to engage in inappropriate conduct at the contact centre, on the video calls, in front of the report writer, and in the court room.
The maternal grandmother, on the other hand, has stepped up to care for the children and has shown she has the capacity to meet their emotional and psychological needs. Her calm approach to the issues facing the children is in stark contrast to that of the mother.
BACKGROUND ISSUES[19]
[19] Section 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The children are Aboriginal on their father’s side. Unfortunately I do not have evidence as to their knowledge of this and what the father can bring to them in relation to their culture. I am however satisfied that if the children spend time with their father, albeit at a contact centre, there is some opportunity to learn more about his side of the family and hopefully culture.
LIMITING FURTHER PROCEEDINGS[20]
[20] 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.
It is never in children’s best interest to prolong or resume litigation. The mother was aware of the impact on the children by this litigation. The court is required to assess whether orders or a lack thereof could lead to further litigation. I am satisfied that if the children were to return to their mother’s primary care there would be a risk of further litigation either in this court or in the Children’s Court. I have come to that conclusion because I cannot see how the mother would comply with any order for the children to spend time with the maternal grandmother. The mother is unlikely to facilitate it which would leave the maternal grandmother needing to make a fresh application. I am also concerned that the Department would need to intervene if the children return to their mother. There would be a return to absenteeism from school, dysregulated behaviour from X and the potential for the mother to enter into another violent relationship.
If I was to leave the children with the maternal grandmother but make provision for the mother to spend time with the children, either supervised or not, there is a real risk the mother’s conduct will lead to a repeat to the problems already experienced by the children. This would again lead to the matter coming back. Although an order for no time is always a last resort order, at least in relation to this consideration it is the most likely way in which to prevent further litigation.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
The presumption that the mother and father have equal shared parental responsibility[21] does not apply in this case given the significant history of family violence as between them.[22] Accordingly I am not required to consider the children living in an equal or substantial and significant time arrangement between the parents. Neither the mother nor the father prosecuted such a case in any event.
[21] Section 61DA(1)
[22] Section 61DA(2)(b)
DISCUSSION
This has been a very difficult case for all involved. The children, the mother and the maternal grandmother have been exhausted by the events of the last few years. The trial was draining on the legal representatives as well. The children have expressed a desire for it all to stop. They want to live free of conflict. I share that wish for them.
It is incumbent upon me to weigh up the assessment of all of the above considerations in assessing what is in X’s and Y’s best interests. In doing so it is important to acknowledge that there is no statutory presumption in favour of children’s parents in proceedings such as this involving a third party. [23] Although s.60B(2) sets out as an object, children have a right to know and be cared for by both their parents, that right is always subject to their best interests. The same principle applies to a child’s right to regularly spend time and communicate with both parents and other persons significant to their care, welfare and development.
[23] See: Rice v Miller(1993) FLC 92-400; B v B Family Law Reform Act (1997) FLC 92-755; Re Evelyn (1998) 92-415; and Russell & Russell and Anor [2009] FamCA 28
The mother asked the court to order the children return to live with her and for her to have sole parental responsibility. This was her primary proposal which also included provision for the children to spend time with the maternal grandmother during school holidays and once per term as well as twice weekly electronic communication. The mother was prepared to be subject to an injunction not to communicate with or spend time with Mr J or allow the children to come into contact with him. The mother’s previous denial of any contact with Mr J leads to me to conclude the mother would not be able to comply with the injunction even if she was sincere in offering it. I also lack confidence in the mother’s ability to facilitate the proposed time for the children with their grandmother. For the reasons set out above I find that the children would be at an unacceptable risk of harm in the mother’s care. For those reasons I find the mother’s primary position would not be in the children’s best interests and must be rejected.
The mother’s first alternate position was for her and her mother to share parental responsibility and for the children to spend time with her for all of the mid-year school holidays and half of the end of year holidays as well as every third weekend. This time was not to be supervised. For the same reasons as I rejected the mother’s primary position I find that the children would be at an unacceptable risk of harm in the mother’s care unsupervised. I reject that part of her proposed orders.
Turning to the consideration of whether the mother and the grandmother should have equal shared parental responsibility, I find that their ability to communicate is fraught with such difficulty that they would not be able to make decisions together. The mother hates the grandmother, does not trust her and was unable to refrain, when talking to the children on the video calls, from being critical of the grandmother and her care of the children. Having discussions about the children’s needs in their absence would only be worse. Accordingly I reject that part of the mother’s proposal.
The mother’s third alternative was that she be advised of the grandmother’s proposed decisions if she was to have sole parental responsibility and to make provision for her to have some input before a final decision was made. For the same reason given in relation to the mother’s request for equal shared parental responsibility I find that it would not be appropriate to make such an order. The mother would subject the maternal grandmother to criticism and abuse. The grandmother should not have to put up with that.
The ICL’s proposed orders would provide for the children to live with the maternal grandmother and for her to exercise sole parental responsibility. I find that those orders are the only orders that could be said to be in the children’s best interests when I take into account the assessment of the considerations set out above. With the exception of gifts and letters on special occasions the ICL argued the mother should be restrained by injunction from spending time with or communicating with the children. Sadly this is necessary to protect the children from further harm. Such an order is in the best interests of the children.
The ICL’s proposal included protections pursuant to s68B for the mother to be of good behaviour towards the maternal grandmother and children, that the mother not approach within 150 metres of the maternal grandmother and children or their residence along with other non-contact provisions. I consider it necessary for these orders to be made. Although the mother lives some significant distance from the grandmother’s home, and there was no evidence of her turning up there, her conduct at the City K Children’s Contact Centre raises concern that if the mother was to become so fixated on her children she may be unable to contain her behaviour and react in a negative way towards the grandmother. I find that these orders are necessary to protect the grandmother. This sort of behaviour would also have the potential to cause harm to the children. The orders should also extend to protect them.
The ICL’s orders also provided for the maternal grandmother to use her best endeavours to ensure the children maintain a relationship with the extended maternal family. The children have a relationship with the maternal grandfather and his wife. It is important for that to continue provided it is not used as a means for the children to spend time with the mother. I will make that order.
With respect to the father, the ICL sought orders for the father to spend time with the children for up to four hours a fortnight at a contact centre as agreed and to communicate by electronic means as agreed. I have earlier in this judgment set out my reasons for supporting the children having a relationship with their father notwithstanding his history of violence and his failure to fully engage in these proceedings. To break that relationship off now will add further to the distress the children will feel in not having an ongoing relationship with their mother. I am however satisfied that any time the father spends with the children must be supervised as I have been unable to assess whether they would be safe in his unsupervised care, given his history of violence, drug and alcohol misuse and his failure to attend court.
When making the order for the maternal grandmother to have sole parental responsibility, I took into account what role the father could play in decision making. He failed to prosecute a case before the court which raised with me concern as to his commitment to the children. Historically he has not been making decisions for the children and I took those factors into account in concluding the maternal grandmother should have sole parental responsibility.
For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding four hundred and thirty-three (433) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lapthorn.
Associate:
Dated: 2 August 2023

Section 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
Section 60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
Section 60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

Section 60CC(3)(j): Any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.

S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.

Section 60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Section 60CC(3)(h): If the child is an Aboriginal child or Torres Strait Islander child: (a) 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 (b) the likely impact any proposed parenting order under this Part will have on that right. See also S.60CC(6).

File number(s):	BRC 14825 of 2019
Judgment of:	JUDGE LAPTHORN
Date of judgment:	2 August 2023
Catchwords:	FAMILY LAW – PARENTING – Initiating Application by grandmother to spend time and communicate with children – During trial concerns raised as to the best interests of the children in the mother’s care – Interim Orders made for children to live with the grandmother – Allegations of family violence in mother’s home - Poor school attendance by children whilst with the mother – Mother untruthful to Police and Child Welfare Department about her relationship – Allegations of family violence by father – Father did not participate in hearing – Consideration of no time order – Section 68B personal protection injunctions
Legislation:	Child Protection Act 1999 s 17 Evidence Act 1995 s 140 Family Law Act 1975 (Cth) ss 4; 60B ;60CA; 60CC; 61B; 61C; 61DA; 65DAC; 68B; 68C; 102NA
Cases cited:	AMS and AIF (1999) 199 CLR 160; 24 Fam LR 756 B v B Family Law Reform Act (1997) FLC 92-755 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 MRR v GR [2010] HCA 4 Re Evelyn (1998) 92-415 Rice v Miller(1993) FLC 92-400 Russell & Russell and Anor [2009] FamCA 28
Division:	Division 2 Family Law
Number of paragraphs:	433
Date of last submission/s:	16 March 2023
Date of hearing:	3 May 2022; 13, 14, 15 & 18 July 2022; 1 September 2022; 13, 14, 15 & 16 March 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Ness
Solicitor for the Applicant:	Rosegold Legal
Counsel for the First Respondent:	Ms Kenny
Solicitor for the First Respondent:	Legal Aid Queensland
Counsel for the Second Respondent:	Self-represented (3 May 2022 – 1 September 2022) Mr Ashcroft (13 March 2023 for part of the hearing only) Self-represented (13 March 2023 – 16 March 2023)
Solicitor for the Second Respondent:	Self-represented (3 May 2022 – 1 September 2022) Dodd Bedford & Associates (13 March 2023 for part of the hearing only) Self-represented (13 March 2023 – 16 March 2023)
Counsel for the Independent Children’s Lawyer	Ms Pendergast
Solicitor for the Independent Children’s Lawyer	Swanwick Murray Roche Lawyers

BRC 14825 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS GAMMILL Applicant
AND:	MS WALWORTH First Respondent MR O’HARE Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE LAPTHORN
DATE OF ORDER:	2 AUGUST 2023