Gilson and Tilbury and Anor

[2016] FCCA 3366

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILSON & TILBURY & ANOR [2016] FCCA 3366

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 6 & 4 – mother has placed the children in the care of the maternal grandmother due to problems in her life – father seeks that the children should come into his care – maternal grandmother seeks that the children should live with her until mother recovers – meaningful relationship – effect of change in circumstances – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65D, 65DAA, 68L

Cases cited:
Goode & Goode (2006) FLC 92-286

Deiter & Deiter [2011] FamCAFC 82

Slater & Light [2013] FamCAFC 4
N & S and the Separate Representative, (1996) FLC 92 – 655

Applicant: MR GILSON

First Respondent: MS TILBURY

Second Respondent: MS NELSON

File Number: ADC 267 of 2016

Judgment of: Judge Brown

Hearing date: 7 December 2016

Date of Last Submission: 7 December 2016

Delivered at: Adelaide

Delivered on: 12 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Bowler

Solicitors for the Applicant: Diane Myers Pty Ltd

Counsel for the First Respondent: Ms Skordos

Solicitors for the First Respondent: The Family Law Project

Counsel for the Second Respondent: In person

ORDERS

1. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born (omitted) 2010 and Y born (omitted) 2012 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

2. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

3. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 27 March 2017.

4. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

5. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

6. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

7. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference

NOTING:

(i)At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

(ii)Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

(iii)Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The children live with the father for the forthcoming school holiday from the conclusion of school or 3:30pm or whatever time is agreed from 16 December 2016 until 3:30pm on 23 December 2016 and each alternate week thereafter.

2. The children live with the mother during the forthcoming school holiday period from 3:30pm on 23 December 2016 until 3:30pm on 30 December 2016 and each alternate week thereafter.

3. Order 10 hereof is suspended so that the children spend time with the father and the mother for the period of Christmas at times to be agreed between the parties as follows.

   (a)With the father from 3:00pm on Christmas Day until 3:00pm on Boxing Day;

   (b)Otherwise with the mother.

4. The children live with the father from the commencement of the school year in 2017 and spend alternate weekends with the mother from 3:00pm Saturday to 3:00pm Sunday commencing on 4 February 2017 and in each other week of each fortnight from after school Wednesday until the commencement of school Thursday commencing on 8 February 2017 NOTING the children will see out the school year living with Ms Nelson.

5. During all periods the children are living with the mother she is required to live at the home of the maternal grandmother who shall take all reasonable steps to oversee the mother’s time with the children and not spend overnight time with the children outside of her home.

6. The mother is restrained and an injunction issue restraining her from consuming illicit drugs during any period of time the children are in her care or 24 hours beforehand.

7. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so for from discussing the proceedings with the children or from permitting any other person to do so.

8. The parties keep each other advised of the children’s health and education and inform the other if the child is required to attend upon a GP or a specialist or if a child is subject to any serious medical emergency or accident.

9. The parties are directed to keep each other informed of their address and contact details including any landline or mobile telephone number and their address.

10. The children be exchanged at (omitted) or such other place as agreed between them if the children cannot be exchanged at school.

11. Further consideration of the matter is adjourned to 29 March 2017 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 267 of 2016

MR GILSON

Applicant

And

MS TILBURY

First Respondent

MS NELSON

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 7 December 2016, there was an interim hearing.  The proceedings have been adjourned until today, 10 December, for delivery of reasons.  As a consequence, there has not been time for the reasons to be put in writing and, regrettably, it will take some time for me to deliver the reasons orally.  I apologise, in advance, for the burden that which listening to these orally delivered reasons represents for all concerned.

2. These are interim proceedings concerning parenting arrangements for two children, X, who was born on (omitted) 2010 and Y, who was born on (omitted) 2012. 

3. At present, the parties to the proceedings are Mr Gilson, the children’s father, Ms Tilbury, the children’s mother and Ms Nelson, the children’s maternal grandmother.  I will refer to them each as “the father”, “the mother” and “maternal grandmother”.

4. Since at least November 2015, arrangements for the care of the children have been muddled and confused, with all concerned making worrying allegations about the parental competence and insight of the other parties concerned. 

5. As a consequence of this confusion, in my view, it is imperative that a family report be obtained as soon as possible and the children themselves be independently represented, so that their interests can be safeguarded and all relevant information placed before the Court. 

6. Both those interventions are intended to elicit objective and reliable evidence about the children and the capacity of their potential carers so that the best orders are made to service X and Y’s interests.  Necessarily, each will take some time to be implemented.

7. Until the report is completed and the independent children’s lawyer comes on board, it remains necessary for the Court to put in place the appropriate provisional orders which it considers will be in X and Y’s best interests. 

8. The difficulty arising being that the present positions of the parties are contradictory but each raises alarming issues.  The truncated hearing available at the interim hearing stage does not permit the resolution of evidentiary issues through cross examination or extensive oral evidence. 

9. The concerns in this case are heightened by the fact that X has significant special needs.  He has been diagnosed with global development delay.  He has seriously delayed oral language skills.  I accept that he is a vulnerable child because of his needs.  Y is also vulnerable because of his tender years.

10. The mother ultimately seeks that the two children should live with her. However, at present, she concedes that she has significant accommodation issues which led to her eviction; has been suffering from anxiety and depression of sufficient seriousness to warrant psychiatric intervention; and has a longstanding problem with back pain, leading to a possible reliance on analgesic medication. 

11. These issues have led to her placing the children in the care of her mother, Ms Nelson, whilst she attempts to get her life back into order.  It is the mother’s case that she sees the children daily and is supported by the maternal grandmother.

12. The children came into the maternal grandmother’s care in August 2016, when the mother and her partner, Mr M, became homeless.  Ms Nelson deposes as follows:

    “I say that at this point in time, I believe that I am the best person to have the wellbeing and care of the children and that the children have been in my care since August 2016 when the mother left the children with me.  Since the children have been in my care, X has attended school regularly, as well as attending appointments.”

13. Ms Nelson is also critical of the father’s level of care of the children and his parental insight generally.  In this context, she deposes as follows:

    “I say that on each occasion the boys spend time with their father, they are exhausted and they do not have a sleeping routine or a proper bathing routine.  The boys are suffering from no routine whilst with their father.  It would assist the father if he could do a parenting course to help him adjust to being with the boys by himself and without any help.  I say that the father lives in (omitted), and X attends school at (omitted) at (omitted).  For the father and children to travel this twice a day must be difficult and time-consuming.  It is also having a detrimental effect on the children.

    I have noticed that when the boys return to my care after spending time with the father, they display unusual behaviours and have no routine.  I then have to make sure the boys get back into a routine.  The boys are exposed to constant video games which seem to be of too graphic in nature for their age.  Any schoolwork is not maintained at the father’s house, and I have to ensure all homework is up-to-date as best as I can.  I have noticed a significant change in Y when he returns from spending time with his father.  I say that Y started to revert to using sign language and grunts instead of communicating properly with us on his return to my care.”

14. It appears to be the maternal grandmother’s position that she should provide a home for X and Y until the mother overcomes her difficulties, which is anticipated from both the mother and the maternal grandmother’s perspective to be likely to be soon and that thereafter the children should be returned to the mother’s care, as she has historically been the superior parent.

15. On the other hand, it is the father’s position that the mother has serious psychiatric and substance abuse problems which result in her making lurid allegations against him and his family.  He asserts that the Court needs to approach every statement made by Ms Tilbury with extreme caution. 

16. Previously, Mr Gilson was disposed to regard Ms Nelson as “an honest broker”, particularly as she in the past has assisted him to spend time with X and Y.  However, recently he has lost confidence in Ms Nelson, asserting that she has deceived him about the degree of Ms Tilbury’s difficulties.

17. As such, Mr Gilson contends that it is apparent that Ms Nelson lacks parental insight and the capacity to protect the children properly from their mother whose own parenting has been significantly compromised over a lengthy period on his case. 

18. In these circumstances, it is Mr Gilson’s position that X and Y’s best interest will be served if they come into his immediate primary care.  In addition, through his counsel, Mr Bowler, Mr Gilson submits that a child’s parents have some degree of primacy over other individuals including grandparents in having to shoulder parenting responsibilities for their children.

Background

1. Just as the evidentiary positions of the parties are confused, so too has been the progress of the matter through the Court to date.  On any view, that progress has been tortuous.  The father commenced the proceedings in late January 2016.  At that stage, he sought regular weekend time with the children. 

2. Mr Gilson is about 32 years of age.  Ms Tilbury is about 35.  The parties apparently met online in 2009 and began to live together in June 2009.  They do not agree precisely when they separated, but it was in either April or August of 2015.  At the time of their separation they were living in rented property at (omitted).  Mr Gilson went to live with his parents in (omitted).  More recently, he has secured rental accommodation in (omitted).  The children remained in the mother’s care at the home in (omitted). 

3. In the past, Mr Gilson has worked as a (occupation omitted) at his family’s business in (omitted).  At other times, he has received a disability pension due to dyslexia.  X attends a special school in (omitted).  Ms Nelson lives in (omitted).  As previously indicated, Ms Tilbury has been evicted from the (omitted) property.  It seems to be the position at present that she and her partner are living in a caravan park.

4. The father commenced these proceedings because from his perspective, the mother had stopped allowing him to spend time with the children from November 2015 onwards for no proper reason.  In his application filed in support of his application, he deposed as follows:

   “There has been no history of violence in the relationship.  There has never been any police involvement, criminal charges, or restraining orders.  There is absolutely no impediment to the mother discussing children’s arrangements with me.  I seek to re-establish regular contact with the children.”

5. The mother responded to this application on 4 April 2016.  It was her position that she had been the children’s primary carer and Mr Gilson had been largely disinterested in them.  Further, the mother characterised Mr Gilson as a violent person who had killed the children’s pet guinea pig and thereafter had threatened to choke or shoot her. 

6. She alleged that Mr Gilson was suffering some psychiatric illness – the precise aetiology of which was unknown to her – and after separation had in effect stalked her entering her home uninvited.  She asserted that Mr Gilson had entered through her bedroom window and moved the children’s food into the shape of a man’s genitalia.  On any view, that was both an unusual, but if true, serious allegation.

7. Against that background, it was Ms Tilbury’s position that she had elected to withdraw the children from their father because of his violent and unpredictable behaviour which she asserted was causing X to act out violently. 

8. However, Ms Tilbury did concede that following separation the children had spent regular periods of time with their father.  She deposed that at separation the parties had agreed that the children would be in the father’s care from Friday until Sunday or Monday, each week. 

9. She further asserted that whenever she needed someone to look after the children so she could attend appointments, she would at first instance contact Mr Gilson.  Significantly, she asserted that she had no intention of withholding the children from their father.

10. The matter came into Court for the first time on 7 April 2016.  On this occasion the parties agreed on a comprehensive raft of orders which included that X and Y would spend time with their father each weekend from 5 pm Friday until 5 pm the following Saturday. 

11. It was a condition that the children’s paternal great-grandmother be substantially present during these periods of time and that the children would be exchanged at a McDonald’s restaurant on the intersection of (omitted) and (omitted). 

12. The father’s initial affidavit was a fairly brief document.  He was given some time to file further affidavit material.  Significantly, the parties agreed that they would meet with a family consultant to discuss arrangements for the care of the two children concerned.  That appointment was scheduled for 14 July 2016.

13. As I indicated, Ms Tilbury was trenchant in her criticism of Mr Gilson.  In those circumstances, on 14 July 2016, Mr Gilson filed an affidavit in which he answered some of the mother’s allegations against him.  He deposed that the mother had not in fact been the children’s primary carer as she had suffered severe back pain since prior to the parties commencing their relationship. 

14. It was his case that Ms Tilbury had difficulty bending over, lifting objects and turning and therefore he had ceased work when Y was born and had adopted a significant if not a primary caring role for both children.  He conceded that he had returned to work in late 2014, but it was his position that he continued to be significantly involved in caring for the children concerned. 

15. Mr Gilson denied killing the guinea pig in question.  He also denied being aggressive or having stalked the mother.  To the contrary, he asserted that on at least one occasion when the police had been involved with the family, they had reached the conclusion that the mother had either exaggerated or fabricated her claims against him.

16. The parties met with Family Consultant Ms K in mid-July of 2016.  Ms K provided a lengthy memorandum to the Court which is four pages in length.  Ms K reported that she was concerned by Ms Tilbury’s presentation at the conference.  Ms K described Ms Tilbury’s presentation as confused, vague and her speech rate as being effortful. 

17. Ms K was not able to discern whether this presentation related to anxiety, other mental health issues or possibly drug abuse.  However, Ms K was sufficiently concerned about Ms Tilbury’s presentation that she made a notification to the Child Abuse Report Line.

18. On the other hand, Mr Gilson was described as being genuine in his attempts to keep the peace with the mother.  He stated that notwithstanding Ms Tilbury’s formal concerns about him, she had agreed to him spending extra time with the children.  At this stage, Mr Gilson indicated that he was not inclined to pursue more time with the children because he was uncertain that if he did so Ms Tilbury might be upset. 

1. In this context, he was concerned that Ms Tilbury might want to jeopardise arrangements through which his mother, the children’s paternal grandmother, fostered a child.  To Ms K, Mr Gilson stated that so long as he kept Ms Tilbury happy and as long as he was guaranteed time with the children, he was happy to continue with the current arrangements.

2. In summary, Ms K described Ms Tilbury as appearing vague, confused, and illogical.  However, significantly, Ms Tilbury made the concession that X and Y returned from their father’s care happy and that Mr Gilson was a good father. 

3. Against this background, Ms K described the dispute between the parties as being unusual, in the sense that the father was not seeking to spend additional time with the children.  This impression was heightened by her significant concerns regarding the presentation of the children’s mother.

4. In these circumstances, Ms K considered it to be desirable that independent evidence be obtained regarding the mother’s current drug status and her mental health.  Ms K was also of the view that an independent children’s lawyer be appointed and that a family assessment be prepared as a matter of urgency. 

5. However, significantly, Ms K raised no concerns about Mr Gilson’s capacity to care for the children.  Rather, she opined that in fact time with their father might be a protective factor for the two children concerned.

6. Just as Mr Gilson perhaps had feared in a further affidavit filed 26 July 2016, Ms Tilbury did raise allegations of sexual abuse of X by the children’s paternal grandmother.  She alleged that the child, X, had disclosed to her and the maternal grandmother that the paternal grandmother had inserted her finger in X’s anus. 

7. This disclosure was allegedly made on 29 June 2016.  As a consequence of it, the child was taken to a Dr W who practises in (omitted), as well as to the (omitted) Police Station, where a report was made.  Dr W wrote on 30 June:

   “This is a letter of support because I am concerned for X’s safety.  X has told me that his father’s mother put a finger into his bottom.  I find no reason to doubt his claim.”

8. The child was described, by the doctor, as presenting with vague constitutional symptoms such as headaches, fever, malaise and abdominal pains, which Dr W opined was a common presentation for children who had been subject to abuse.

9. At this stage the mother alleged that she was fearful as to how the father would react to these disclosures.  She has also subsequently conceded that their nature has made her personally increasingly anxious.  As a consequence she deposes that she had attended on a psychiatrist, a Dr Z.

10. Against that background, Dr Z has provided a very brief report, dated 21 July 2016, in his handwriting, which read as follows:

    “This is to satisfy that Ms Tilbury attended for assessment and advice regarding her depression and anxiety.”

    The report says nothing else.  As such, in the complicated circumstances of this case, it does not seem to me to be particularly helpful, particularly in regards to the factors which have precipitated her anxiety and depression and over what period.

11. However, in her affidavit material, Ms Tilbury deposed as to her medication received for chronic back pain.  It included Panadeine Forte; Topamax tablets for nerve pain; Tramal slow release tablets; Seretide inhaler and a Ventolin inhaler for asthma; Trapamax tablets for nerve pain; and Valium, as needed, for anxiety.  At this juncture, I have not been provided with any expert evidence as to the implication of these various medications.

12. The matter returned to Court on 28 July 2016.  Notwithstanding the concerns raised by Ms K, Mr Gilson chose not to agitate for a change in the children’s living arrangements.  Rather, he wished to ensure that he continued to see the children regularly. 

13. Similar orders were made to those currently in place and the proceedings were adjourned until 14 October 2016.  An order was made that the children were not to be left in the sole care of the paternal grandmother, but otherwise an order was made permitting the children to sleep overnight at the father’s home on weekends.

14. As scheduled, the case returned to Court on 14 October.  At this stage, although no significant affidavit material had been filed, it became apparent to both the Court and to Mr Gilson, that the children were no longer living with the mother, but rather with the maternal grandmother. 

15. In these circumstances, on 14 October 2016, Ms Nelson was given leave to intervene in the proceedings and orders were made ensuring that Mr Gilson’s time with the children was maintained, whilst they remained living with the maternal grandmother.  Ms Nelson was directed to file affidavit material within about three weeks or so.  This led to Ms Nelson filing an application in a case and an affidavit on 11 November 2016.

16. In this material, Ms Nelson has subsequently deposed that Ms Tilbury did not see the children between 2 September and 14 October 2016.  In addition, Ms Nelson further deposed that she had spent a large sum of money attending to the children’s allegedly neglected dental needs.  Significantly, Ms Nelson asserted that the children had been staying overnight with her regularly for the past 12 months or so. 

17. As previously indicated, Mr Gilson is aggrieved that he was not given information about what he regards as the gross difficulties from Ms Nelson’s point of view, arising in the mother’s household in respect of care arrangements for X and Y.  Accordingly, he no longer trusts Ms Nelson.

18. It is against this difficult background that the Court is called upon to determine interim arrangements for the care of X and Y.  The positions of Mr Gilson and Ms Nelson which were once fairly congruent, are now polarised in the extreme. 

19. The father seeks that the children live with him and spend alternate weekends and half school holidays with the mother, provided that her time with the children is supervised by Ms Nelson. 

20. In addition, he seeks that the mother undergo a regime of random supervised drug screen testing and some form of psychiatric or psychological assessment.  He is aggrieved at the criticisms made of him by the maternal grandmother. 

21. He denies that he does not attend to the children’s hygiene properly and has provided the Court with happy photographs of the children in their pyjamas and the comfortable bedroom which they occupy at his home.  He denies that he will not be able to get X to school as scheduled.

22. It is his position that the mother abandoned the children and her life remains, effectively, out of control.  He is aggrieved that Ms Nelson did not inform him of Ms Tilbury’s obvious difficulties and, therefore, has demonstrated that she lacks insight into what is the degree of responsibility incumbent in caring for children.  He is particularly aggrieved that Ms Nelson has acknowledged that she has allowed the children to spend regular unsupervised periods of time with their mother.  He deposes as follows:

    “The maternal grandmother continues to fail to understand or respond appropriately to the threat of continued neglect, domestic violence, homelessness and exposure to drug taking, volatile behaviour and poor mental health exhibited by her daughter.  She has allowed the children to stay with their mother at a caravan park.  I know this because the children have told me, “We’re sleeping at mummy’s caravan house.”  The maternal grandmother states her concerns about the mother and has herself sought to be the children’s carer and then still leaves the children in the mother’s care unsupervised when it suits her.”

23. Mr Gilson is critical of Ms Nelson’s accommodation, asserting that her accommodation is crowded and the children have to sleep on a lounge.  He further is critical of Ms Nelson in that he alleges that she is a heavy smoker and in poor health which necessitate her to take a lot of prescription pain medication.  He is also concerned that she is taking antidepressants. 

24. Mr Gilson’s mother, Ms J, has also filed an affidavit which is critical of Ms Tilbury.  She alleges that Ms Tilbury has dishonestly used her, the paternal grandmother’s credit card.  She vigorously refutes any suggestion of having inappropriately dealt with the children or used them as the source of her own sexual gratification.

25. In her most recent affidavit, filed on 1 December 2016, Ms Tilbury continues to raise allegations of sexual abuse.  She agrees that she did not see the children for an extended period of time, but asserts that this was due to her being “stressed and unwell.”

26. Mr Gilson, in his most recent affidavit filed on 1 December 2016, has provided further evidence in respect of the mother’s allegation of sexual abuse.  This indicates that the mother failed to attend a Child Protection Unit interview organised for her.  From his perspective, this provides ample evidence that the mother does not regard the allegations of sexual abuse as having any proper basis in truth as otherwise she would have attended the appointment as arranged.

27. It is his position that X and Y have been greatly distressed by their mother’s apparent abandonment of them.  He says that the children told her that they thought their mother had died.  In addition, he has obtained records from X’s school, for the period from 1 February 2016 to 27 July 2016, which show that X was absent from school for 43 days and was late to school on 14 days. 

28. On this basis, it is his position that it is clearly the case that there was something very wrong in the mother’s household of which Ms Nelson should have been aware and about which she should have informed him, as the children’s father.  He effectively asserts that Ms Nelson is covering up the mother’s obvious deficiencies as a parent.

29. It is, further, his evidence that he believes Ms Tilbury and Ms Nelson have a volatile relationship.  He reiterates his concern that Ms Nelson has demonstrated poor judgment in leaving the children in the care of Ms Tilbury when she should have been aware of her psychiatric issues and drug problems. 

30. It is, further, his position that he has been shocked when he recently saw Ms Tilbury.  He believes that she presented in the grip of a serious drug addiction.  He also has concerns about the nature of the mother’s relationship with her current partner and believes that he is a person who has significant drug issues of his own.

31. In this context, he summarises his position as follows:

    “I say the children will stand the best chance to grow to be sensible adults if they are placed into my care.  I love them very much, and they are and always have been my highest priority.  I am committed to the children maintaining their relationship with the mother and the maternal grandmother but in a safe manner.”

32. The only other document which has been provided to me is a drug screen test of Ms Tilbury which is dated 23 November 2016.  This report is positive for morphine and codeine.  I do not know whether that is indicative of prescribed medication or otherwise, as I have not been provided with any expert evidence in respect of it.  Interestingly, the clinical notes read:

    “Expect to find codeine.  If amphetamine-positive, please GC/MS.”

Legal principles applicable

1. The legal principles applicable are set out in Part VII of the Family Law Act 1975 which deals with the law relating to arrangements for the care of children.  The chief means by which the Court deals with such arrangements is through the making of a parenting order.  Pursuant to section 65 of the Act:

   “A child’s parents, the child, him or herself, the child’s grandparents or any other person concerned with the child’s care, welfare and development may apply for a parenting order.”

2. In addition, as a consequence of the provisions of section 65D, the Court is empowered to make whatever parenting order it considers proper. Amongst other things, a parenting order can deal with whom a child lives. Accordingly, there is no legal impediment to Ms Nelson seeking orders in respect of X and Y.

3. The objects and principles which underlie Part VII of the Act are set out in section 60B. The objects speak of:

   “…ensuring the children have the benefit of both of their parents having a meaningful involvement in their children’s lives.”

4. Underlying that object is the principle that children have the right to know and be cared for by both their parents, regardless of the nature of their parents’ relationship and:

   “…children have a right to spend time on a regular basis with, and communicate on a regular basis with both their parents and other people who are significant to their care, welfare and development such as grandparents.”

5. In this case, I accept that both the maternal and paternal grandparents are persons who are significant to these two children.  I also accept that one of the central issues in this case is putting in place a regime which will ensure that the children have the benefit of the involvement of both of their parents in their lives but at the same will ensure that the children are physically and psychologically safe.

6. In this context, one of the objects of the Act is to:

   “… ensure the children receive adequate and proper parenting to help them achieve their full potential.”

7. That is particularly important in the case of X, who has special needs.  I am concerned that he has not it would seem for significant portions of this year attended school appropriately.  It is, as I say, a central theme of Ms Nelson’s case that she is better placed to get X to his school than Mr Gilson because of where he lives.

8. The mechanics of how a Court makes a parenting order are set out in sections 60CA and section 60CC. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount or most important consideration [section 60CA].”

9. The matters which the Court must take into account in deciding how a child’s best interests are to be served are set out specifically in the Act in section 60CC. Section 60CC creates two classes of consideration which apply to the Court’s determination of how a child’s best interests will be determined in proceedings before it, primary considerations and additional considerations.

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

    (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

11. As a result of the insertion of section 60CC(2A) into the Act, the Court is now directed, in applying the primary consideration, to give greater weight to the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.

12. Other specific criteria relating to how the Court is directed to consider how the best interests of any child concerned may be served by any order which is made as set out in section 60CC(3). There are 14 such criteria, which are categorised as being additional considerations.

13. Pursuant to section 60CC(3)(m), the Court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the Court makes.

14. Although the Court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  As such, it is the Court’s duty to deliver individualised justice for the child affected in every case. 

15. It is also the case that, at the interim stage, I am obliged to follow a specific pathway which was delineated by the Full Court of the Family Court in the case of Goode & Goode[1].

    [1]  See Goode & Goode (2006) FLC 92-286

16. In Goode, the Full Court of the Family Court indicated that in a truncated interim hearing such as this one, the Court should endeavour to analyse the factual situation, focusing on what is agreed whilst bearing in mind that it cannot make findings of fact about all manner of disputed things. 

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

18. In this context, I am satisfied that the children are likely to benefit from having a meaningful level of relationship with both of their parents.  It seems clear to me that both Mr Gilson and Ms Tilbury know both of the children well and in turn X and Y love each of their parents and, indeed, their grandparents. 

19. The main emphasis of the case, at this stage, must be on protective concerns relating to the children involved.  In this context, it is necessary for the Court to make some assessment of the risk which each of the proposed parenting regimes represent for the children concerned.

20. The Full Court in Deiter & Deiter[2] has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity for the individuals, particularly children, who will be potentially affected by it.  Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. 

    [2]  Deiter & Deiter [2011] FamCAFC 82 at [61]

21. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

    “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [3]

    [3]  Slater & Light [2013] FamCAFC 4 at [37]

22. Having considered the material, I do not consider that there would be an unacceptable risk to the children concerned, of being subjected to some form of sexual abuse, if they come into their father’s care.  In this context, I am concerned that Ms Tilbury failed to attend the child protection investigation.

23. On the other hand, at this stage, I think there are significant concerns regarding Ms Tilbury’s care of the children because of the, as yet, inchoate issues raised regarding her psychological wellbeing and issues relating to her drug use.  I reach this view because it is uncontested evidence that towards the middle of this year, Ms Tilbury felt the need to lodge the children with her mother. 

24. In my view, that indicates that there was something seriously remiss in her household at the time.  She herself concedes that she lost her accommodation and was feeling stressed and depressed as a result.  Accordingly, at this stage, whilst conceding the need for the children to have a meaningful relationship with their mother, it is my view that either the father or the maternal grandmother is a better potential custodian for the children on an interim basis than the mother. 

25. As I have indicated, in Mr Bowler’s submission, the structure of the Act prioritises the role of a parent over a grandparent no matter how well motivated that grandparent is.  In this context, it is the case that the objects and the principles of the Act do place a greater emphasis in their wording on the role of parents in the care of their children. 

26. As indicated, section 60CC(2)(a), on a primary basis speaks of the benefit of children having a meaningful relationship with parents specifically rather than with grandparents. Although the Act does alludes to grandparents in the additional considerations [see section 60CC(3)(b)(ii)], the main emphasis is on relations between parents and their children. However, in my view, there is no legislative impediment to a parenting order being made in favour of a grandparent.

27. It is now appropriate to turn to the additional considerations.  They start with the views of the children [section 60CC(3)(a)].  Given the ages of the children and also X’s special needs together with the fact that there has been no expert examination of their views, this cannot be a determinative factor at this stage. 

1. The next factor is:

   The nature of the relationship of the children concerned with each of their parents and with other persons, including grandparents or other relatives of the child [section 60CC(3)(b)].

2. Clearly, in this case Ms Nelson has a significant relationship with both X and Y.  They have been living in her household for a significant period of time.  I accept that she loves the children very much indeed.  However, Mr Gilson cannot be described as a stranger to the children. 

3. When Ms Nelson became involved in these proceedings, she was supportive of Mr Gilson spending time with the children although, over time, she has become more critical of his parenting whilst at the same time her position has become more in line with that of Ms Tilbury.  I would be naive if I did not think that loyalties of blood and nurture were not a significant factor in this.

4. A further factor to consider is:

   The extent to which the child's parents have taken or failed to take the opportunity to participate in decision-making in regard to the children or to spend time with the child concerned [section 60CC(3)(c)].

5. In this case, I accept that Mr Gilson has always been interested in X and Y’s care, notwithstanding the criticisms made of him.  It is clear that he made his application to the Court as quickly as possible.  Although, as the proceedings initially unfolded, he was content to spend time with the children and not unduly rock the boat vis-à-vis Ms Tilbury, I do not think that this is demonstrative of any lack of interest in the children on his part. 

6. To the contrary, in my view, it demonstrates perhaps a nuanced level of insight in what was likely to be helpful to them given the volatile nature of the parties’ parenting relationship.  I accept that he did not want to exacerbate the situation unduly, but rather preferred to ensure that he maintained a significant role in the children’s lives without precipitating undue conflict with their mother.

7. Financial issues in respect of the support of the children [section 60CC(3)(ca)] are not likely to be significant at this stage, although it is a major plank of Ms Nelson’s case that she was compelled to outlay significant sums of money to have the children’s teeth attended to.  In this context, it is Mr Gilson’s position that he was unaware of these problems which he attributes to the mother’s neglect of the children.  Whether this is so or not is difficult for me to ascertain at this stage.

8. The next significant consideration is:

   The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents or 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)(d)].

9. In my view, this is a very significant consideration in the case.  Ms Nelson approaches the case on the basis that it would be unduly disruptive for the children to move from her care where they have been since August of this year into Mr Gilson’s care which she categorises as being untested on any protracted basis.  

10. The difficulty with this submission is that Ms Nelson’s position in the case is somewhat unclear.  As I understand it, however, she does not wish to be the children’s full-time carer on a permanent basis.  As such it would be her preference that she support Ms Tilbury and acts as a bridge to enable the children to be returned to her care at some uncertain point in the future. 

11. At this juncture, it is unclear to me whether Ms Tilbury will be able to affect the necessary degree of change in her life to make this a reality.  In those circumstances, I am concerned that to place the children in Ms Nelson’s care, at this interim stage, possibly for several months may of itself be a destabilising factor for X and Y, in the longer term.  Placing the children with Ms Nelson must be regarded as a stop gap measure.

12. I reach this conclusion because ultimately, these proceedings will be a contest between the father and the mother as to who is likely to be the better custodian for the children.  In my view, this is likely to be the central focus of the family report which I intend to order. 

13. In my view, this is a significant factor which militates in favour of the children being placed in the father’s predominant care at the interim stage, given the mother is not a viable candidate for their full time care at the present time. 

14. However, at the same time, the Court needs to put in place a regime which will see the children maintaining their significant level of relationship with both their mother and maternal grandmother. There will be logistical difficulties with such an arrangement section 60CC(3)(e)].

15. The parties, at this stage, live at the points of a triangle which extends from (omitted) to (omitted) and includes (omitted) where X’s school is.  Those difficulties are acute but thankfully, the parties remain living in the Adelaide metropolitan area, and in my view, they should not be insurmountable.

16. This is a troubling case in that each of the parties concerned makes very serious criticisms of the other, particularly, in terms of his or her capacity to provide for the intellectual and emotional needs of the children and the insights into the responsibilities of parenthood which each has demonstrated. 

17. It is I think Ms Nelson’s position that she has perhaps against her overall desires, become enmeshed in this case because neither the father nor the mother has demonstrated a great capacity to provide for the children either in an emotional or educational sense.

18. However, on balance, it would seem to me that Mr Gilson, of the two parents concerned, has at this stage got the greater capacity to provide for the children’s emotional and intellectual needs [section 60CC(3)(f)]. 

19. There are allegations of family violence made in this case by the mother of the father [section 60CC(3)(j)].  I have to consider those allegations.  But, in my view, this is a case that primarily is focused on issues to do with potential neglect of the children and abuse, not on issues to do with family violence given that Ms Tilbury is not currently in a position to provide a home for the children to live predominantly in.

20. I am required in all parenting cases to consider the presumption of equal shared parental responsibility that arises under section 61DA. This presumption is open to rebuttal if it is considered that it is not appropriate for it to be applied at the interim stage. Given the polarised nature of the relationship between the parents involved in this case, in my view, it is clearly not appropriate for the presumption to be applied.

21. This is a difficult and troubling case.  As I say, in summary, it is my view at this stage that Ms Tilbury is disqualified from providing the children’s residence and that is a fact which she herself concedes.  Given that Ms Nelson can only be a temporary carer for the children in those circumstances I have come to the view that the children, after the school holiday, should come into Mr Gilson’s predominant care.

22. I will make orders that will see the children’s care during the school holidays being shared, but on the condition that any time the children spend with their mother should be subject to the oversight and supervision of Ms Nelson. 

23. As indicated at the outset, I will make orders in respect of the appointment of an independent children’s lawyer and for the preparation of a family report.  I will continue the injunctive orders made at the earlier stage and the orders in respect of handover and medical emergency.

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

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:       22 December 2016