Greene & Dumas

[2018] FCCA 2759

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREENE & DUMAS & ANOR [2018] FCCA 2759

Catchwords:
FAMILY LAW – Multi-party parenting dispute – applicant paternal grandfather seeking primary care of two children – father and step-father both having significant criminal records – mother seeking to deny step-father’s criminal history and assaults on the children – clear boy assaulted by step-father in 2017 – also clear step-father not at risk of sexual abuse of children – children always in the primary care of the mother – all parties unable to interact in an adult, child-focused way – orders proposed by the Independent Children’s Lawyer to address step-father’s temper and related issues – orders to assist parties to address their mistrust and incapacity to communicate – children to remain in primary care of the mother – orders made as sought by the Independent Children’s Lawyer – Court ordering children not to be left alone with step-father unless in a public space where other adults are present.

Legislation:

Family Law Act 1975

Cases cited:

Goode v Goode [2006] FamCA 1346

Applicant: MR GREENE

First Respondent: MS DUMAS

Second Respondent: MR A GREENE

File Number: MLC 8110 of 2017

Judgment of: Judge Burchardt

Hearing dates: 27, 28 & 29 August 2018

Date of Last Submission: 29 August 2018

Delivered at: Dandenong

Delivered on: 12 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Leeton

Solicitors for the Applicant: James McConvill & Associates

Counsel for the First Respondent: Ms Dunlop

Solicitors for the First Respondent:	Ruffin Lawyers
Counsel for the Second Respondent:	Ms Bastick

Solicitors for the Second Respondent:	Cathleen Corridon & Associates
Counsel for the Independent Children’s Lawyer:	Ms Stavrakakis

Solicitors for the Independent Children’ Lawyer: Victoria Legal Aid

INTERIM ORDERS

1. The mother and father have equal shared parental responsibility for the children [X] born … 2011 and [Y] born … 2008 (“the children”).

2. The children live with the mother subject to Order 10 herein.

3. The children spend time with and communicate with the father as follows:

   (a)Each alternate weekend from Friday to Monday;

   (b)The first half of all school term holiday periods;

   (c)During the long summer school holiday period from 27 December for 14 days;

   (d)Father’s day weekend;

   (e)Half of Christmas;

   (f)Half of the Easter long weekend; and

   (g)Other times as agreed between the mother and the father in writing.

4. Any overnight time referred to in these orders in relation to the children and the father occur at the paternal grandfather’s home.

5. The children spend time and communicate with the paternal grandfather as follows:

   (a)Each Wednesday from the conclusion of school to the commencement of school on Thursday;

   (b)

   Each second alternate weekend (alternate weekends referring

   
   

   to those stated in Order 3(a) herein);

   (c)At times specified in Order 3 herein including first option of the father is unable to exercise his time with the children for any reason;

   (d)Other times to be agreed between the mother and the paternal grandfather.

6. The paternal grandfather is to be in substantial attendance during his time with the children referred to in Order 5 herein.

7. Changeover take place at the children’s school on school days.  Otherwise changeover will be at Town E Police station.

8. The parties, their agents and servants are hereby restrained from allowing for permitting any other person to:

   (a)Discuss the proceedings with or in the presence of hearing of the children;

   (b)Physically disciplining the children;

   (c)Leaving the children alone with Mr B without another adult present, unless in a public place where other adults are present;

   (d)Consuming alcohol to excess when the children are in their care;

   (e)Ingesting illicit drugs when the children are in their care;

   (f)Administering prescription medicine to the children unless it has been prescribed for them.

9. All parties attend and engage with a counsellor nominated by the Independent Children’s Lawyer for the purpose of strengthening their relationship for the benefit of the children and for making decisions about parental responsibility as referred to in Order 1 herein.

10. The mother do all acts and things for herself and Mr B to attend and engage with a psychologist, as nominated by the Independent Children’s Lawyer, for the purpose of addressing the issues raised in the Family Report prepared by Ms C dated 5 August 2018, and comply with all recommendations of the said psychologist.

11. The Independent Children’s Lawyer have liberty to engage with the psychologist referred to in Order 10 to obtain information, inter alia, about attendance, engagement and progress.

12. The Independent Children’s Lawyer be at liberty to provide the professionals referred to herein with the Family Report.

13. The mother and father be at liberty to communicate with any medical professionals treating the children, and any medical records or information may be exchanged between the mother and the father but may not be provided to any other party.

14. The mother and father will notify the other of any medical emergency relating to the children while in their care.

15. The father be at liberty to receive any school reports, newsletters or notices at his own expense.

16. The Independent Children’s Lawyer be granted liberty to apply.

17. The Order appointing the Independent Children’s Lawyer be discharged six months from the date of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 8110 of 2017

MR GREENE

Applicant

And

MS DUMAS

First Respondent

And

MR A GREENE

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about two young children, [Y] born on … 2008 and [X] born on … 2011.  The applicant paternal grandfather seeks that the children live with him during week days and with their mother and father on alternate weekends.  The respondent mother seeks that the children live with her and spend time with the father, but seeks so far as practicable to excise the grandfather and his partner, Ms D, entirely from the children’s lives.  The father’s position is that the children live with the mother and spend time with him in a 10/4 arrangement on an interim basis pending a psychiatric or psychological assessment of all concerned.  This includes the mother’s partner, Mr B. 

2. The Independent Children’s Lawyer’s position is that the children should live with the mother and spend time with the father each alternate weekend from Friday to Monday, together with half school term holidays and special days, together with two weeks in the long summer holiday.  There are various caveats to that regime. 

3. As is readily apparent, there are multiple competing applications.  The matter was further complicated by the fact that at the commencement of the proceeding the applicant grandfather, supported by the father, and largely supported by the Independent Children’s Lawyer sought psychiatric assessment and/or further investigation of Mr B’s mental health, a matter said only recently to have become apparent.  The mother opposed such an application.  I ruled that the matter should proceed, but indicated that I would consider any application for a psychiatric or other assessment of Mr B when the evidence of the parties was in.  No party sought further examination of Mr B once all the evidence was in and accordingly I propose to make final orders.  As the evidence has unfolded I think I am in a position to do so.

4. Having sketched some of the dispute in this fashion, I would indicate that for the reasons that follow I am going to make the orders sought by the Independent Children’s Lawyer. 

Agreed or Uncontroversial Matters

1. The applicant grandfather was born on … 1965.  He is a semi-retired tradesman.  He has been living with his partner, Ms D, for some eight or nine years (their engagement seems to be a rather long one).  Ms D was born on … 1969 and is in employment, having two adult daughters.  

2. The father was born on … 1985 and entered into a relationship of boyfriend and girlfriend with the mother at an early age, it would appear, in their early teens.  Although there is some dispute as to exactly how old the mother was when it commenced, it is common cause that the mother lived with the grandfather for some years having moved out of her own family home because of disputation with her mother from whom she remains estranged. 

3. The mother was born on … 1986 and she asserts, without material contradiction, that cohabitation with the father commenced in … 2007.  Separation appears to have taken place in early 2012.  The father re-partnered with Ms E in 2013 and the mother re-partnered with Mr B in February 2013 also.  The mother and Mr B have had three children, [F], born … 2014, [G], born … 2016 and [H], born … 2017.  The father and Ms E have a daughter, [J], born … 2015, but they separated in early 2016.  

4. Both the father and Mr B have criminal histories.  The father was jailed in 2016.  On release he breached his Community Corrections Order (“CCO”) and is presently subject to a CCO that will not finish for many months. 

5. Mr B’s criminal record as shown by exhibit ICL3 shows an extensive criminal history going back to early years.  I note that he was still committing significant and serious offences relating to burglary, theft and the like as recently as 2016, a period well after his relationship with the mother had commenced.

6. In 2014 an incident took place which might be thought, looking at the evidence overall, to be the wellspring of the extraordinary distrust and dislike that obtains between the parties.  It would appear that the maternal grandmother, Ms K, was changing [X]’s nappy.  [X] had an extreme reaction to being touched in her vaginal area.  This led Ms K to ask her daughter (the mother’s sister) to tell the paternal grandfather that Mr B had sexually abused the child.  Unsurprisingly, the grandfather notified the Department of Health and Human Services (“DHHS”) and the children were removed for a brief while from the mother’s care and placed with Mr Greene and Ms D, whom I shall refer to as the grandparents from now on.  Following a court hearing shortly thereafter the children were returned to the mother’s care.

7. Equally unsurprisingly, the relationship, previously good, between Mr Greene and the mother was sundered and it was not resuscitated until either late December 2015 or early January 2016. 

8. The father continued to spend time with the children in 2014, but his time appears to have gradually withered out as he descended into drug use and crime, both of which he admits. 

9. Following the resumption of relations between the grandparents and the mother, which included the grandparents agreeing to pay school fees and related expenses for the children, and subject to some minor hiatuses such as the grandparents taking the children to Town L without telling the mother, matters proceeded relatively unremarkably until June 2017.  At that time, although there is dispute as to exactly how the matter progressed, [Y] made disclosures of assault by Mr B upon him and this provoked the filing of the application by the grandfather which has led to this hearing.

10. The other significant incident took place in February 2018 when through a misunderstanding, the children were not provided to the father to spend time and no notification reached the father, albeit that it was sent.  The grandfather took it upon himself to attend at the home of the mother and Mr B and an altercation, which does no credit to anybody, took place following which the grandfather was charged with assault and, ultimately, entered into a good behaviour bond. 

The Parties’ Affidavits

1. Because of the way the case has unfolded, this is a matter in which regrettably there are no shortcuts.  There is no alternative but to setting out at least in some detail the salient features of both the affidavits and the evidence given at court. 

2. Much of what is in the parties’ affidavits is encapsulated in the agreed or uncontroversial matters above, but it is nonetheless appropriate to traverse the affidavit materials the parties have filed from time to time.  The grandfather’s affidavit, filed contemporaneously with his initiating application on 11 August 2017 largely sets out the history of the matter as put above.  I note that at that time the father was then awaiting sentencing for charges, including motor vehicle theft, and that he had previously received a custodial sentence and went to jail for theft and drug possession.  The grandfather noted that the separation between the father and mother had been volatile and accused the mother of stealing items from the father’s business.  I do not propose to waste any time on that aspect of the dispute.  He deposed that the father had had difficulties in seeing the children.  He deposed that his own time with the children had not been regular.

3. Critically, he went into considerable detail about the events of June 2017.  He deposed that the mother asked Ms D and himself to look after [Y] and [X] when she went into hospital to give birth to her fifth child, she undertaking an elective caesarean. 

4. Critically, he deposed to the alleged incident in June 2017 at paragraphs 19 to 22 as follows:

   “Ms Dumas contacted Ms D and me to ask us to look after [Y] and [X] when she went into hospital to give birth to her fifth child.  She was having an elective Caesarean birth, and told us that she did not feel comfortable leaving the children with Mr B.  We told her that we would be delighted to take the children.  We were planning on going to Queensland.  Ms D wanted to go to see her uncle who was going to have surgery.  She wanted to spend some time with him when he got out of hospital.  We told Ms Dumas that we would organise to take the children with us.  A couple of days later, she telephoned saying that Mr B would not let the children come with us for a holiday.  We were disappointed, but went ahead with arrangements for the trip, planned and bought plane tickets to leave for Queensland on 24 June 2017.

   The night before we were going away, Ms Dumas came over to see Ms D and me, she had all four children with her, [Y], [X], [G] and [F].  She was pregnant with her fifth child.  Ms Dumas drove up the driveway, and we went out to see her.  She seemed very upset, as if she had been crying, and we asked her and the children to come inside for a bit.  Ms Dumas said:  “Me and Mr B have had a fight.  He takes all his anger out on [Y], he was saying why should they get a holiday?”  That was the reason why she had told us that the children would not be coming to Queensland with us.  Ms Dumas looked very upset, as if she had been crying, and she asked us if we would be able to take the children with us to Queensland.  She said to us:  “I don’t feel safe leaving the kids ([Y] and [X]) with Mr B.  I would rather they went to Queensland with you”.  We told her that we would be happy to take the children with us, but we needed to try and get them on the same flight that we were on.  Ms D started to call airlines to see if we could get tickets for them.  Fortunately, we managed to book flights for them on the same departing flight. 

   We sat with Ms Dumas and talked for a while until Ms Dumas was calmer.  [X] told me and Ms D that Mr B had thrown [Y] across the room.  Both children seemed scared of Mr B.  I asked [Y]:  “Is this true?”  [Y] shook his head, and said:  “Yes, it hurt, all my face was sore, I hit the toilet bowl”.  From what the children had described, Mr B had thrown [Y] across the room, and [Y]’s head hit the toilet.  Both children seemed scared of Mr B.  My understanding is that there is an instant report of this particular event.”

5. It should be noted that the grandfather deposed, and it does not seem the subject of much challenge, that the mother had packed very few clothes for the children.  The children, in fact, wore their pyjamas on the plane.  The mother took the other two children home with her.

6. The affidavit notes that the children were referring to their own father as “Mr A Greene” and that the children told him that their mother had said that Mr B was their father now.  There is an assertion that the children are made to watch horror movies if they are naughty, which I do not propose to take any further.  It is vividly denied. 

7. The affidavit went on to depose that on 23 June 2017 the children stayed with the grandparents.  [Y] told the grandfather how the DHHS had come to the school and that “Mummy had told me not to say anything to them said we would probably go to a different school, because DHS had come to the school.”

8. The father said he went to the school when they got back from their holiday and he spoke to the Principal just to see how the children were getting along and what their attendance was like.  On 17 July 2017 the Principal told him that [Y] had disclosed to the school the incident where Mr B threw [Y] across the room as a result of which the children were interviewed.  

9. The grandfather deposed that following that incident he had not seen the children.

10. The affidavit of Ms D filed 11 August 2017 details her relationship with Mr Greene and other introductory matters.  She deposed that the grandparents had taken the children to Queensland for a holiday from 24 May until 3 June 2017.  She deposed that on 13 May 2017 she received a text message from the mother asking whether they could take the children for a few days while she was in hospital having her fifth child.  She replied that they would be in Queensland, but they were happy to take the children.  The mother replied that she would have to ask Mr B and get back to them and the following day informed them that the children would stay with Mr B. 

11. The grandparents booked flights leaving on … and returning on … . 

12. The affidavit traverses the events of the night of 23 May in rather more detail than that of the grandfather.  Relevantly, Ms D deposes inter alia that:  “Ms Dumas said: ‘ I don’t trust Mr B with the kids at all.  I wanted them to be safe’”.

13. She further deposed at paragraph 22 of her affidavit:

    “Mr Greene and I asked Ms Dumas if she was okay, and what had happened as it appeared as if she had had a fight with Mr B, and left the house in a hurry.  She stated that it was not safe for the children to be at home with Mr B, and that she wanted them to be safe while she was in hospital having the baby.  Ms Dumas also said to us that when Mr B gets angry, he takes it out on [Y].”

14. At paragraphs 24 - 26, Ms D deposed:

    “I wanted to make sure that the children were aware that they were going on a holiday with Mr Greene and me.  She called [Y] and [X] into the kitchen and proceeded to tell [Y] and [X] that they would be staying with us.  When she told them, [Y] and [X] both said to her:  “Is that because you want us to be safe?”  Ms Dumas replied:  “Yes”.  The children seemed so excited to be coming on holiday with us. 

    The children also talked about an incident involving Mr B and the cats that occurred in the family home.  Mr B has asked [Y] to feed the cat.  [Y] fed the cats.  Mr B accused [Y] of not feeding the cat, but, in fact, the cats had eaten all the food.  Mr B saw the cats’ empty bowl, and accused [Y] of not feeding the cats.  [Y] tried to tell Mr B that he had fed the cats.  [X] also pleaded with Mr B and told him that [Y] had fed the cat.  [X], said to us:  “I tried to tell Mr B that [Y] had already fed them (the cats) but they had eaten all the food.  I was crying when I was telling him, but he was still getting angry with [Y].  He picked [Y] up and threw him across the laundry, [Y] hit a wall”.  Ms Dumas told us that she was there when this incident happened, and she said:  “When Mr B gets angry he takes it out on [Y]”.  She acknowledges that Mr B has a temper.  She said that [X] always sticks up for [Y] and tries to protect him.  They are very close and have a very close bond.  Both children said they were really scared of Mr B. 

    The children left the kitchen and I asked Ms Dumas about this incident.  She said that Mr B had a real problem with [Y] and seemed to take his anger out on him.  I then asked her why Mr B had said that he would not let the children come with us to Queensland when we had first tried to organise it.  Ms Dumas said that Mr B had said:  “The little cunt does not deserve a holiday”.”

1. Otherwise the affidavit is largely corroborative of the grandfather’s affidavit.  It contains a number of assertions about the children’s health, care and general appearance which are designed to cast doubt upon the mother’s parenting skills.  Once again, it is not necessary for the court to determine these matters.  There are various other criticisms of Mr B in the affidavit, but in my opinion these matters are at the margins.  There is all too much serious matters to resolve without descending to this level of paranoia. 

2. The mother’s affidavit filed contemporaneously with her response details the parties and their dates of birth and the dates of the relationship. 

3. She referred to the incident in 2014 at paragraph 8 and following.  On her version of the events the grandfather pushed his way into her home and insisted that he take the children while the police and Department of Health and Human Service investigate.  I note that following an 11F conference on 4 April 2014 Judge O’Sullivan returned the children to the mother’s care.  He also made an order that the children not have any contact with Mr B until further order. 

4. The mother deposed that the father spent time with the children from February to September 2015 but simply ceased turning up.  The mother confirmed the contact by the grandfather in December 2015 and the recommencement of relations with the children.  The mother’s version of how the children came to go to Queensland is strikingly different at paragraphs 16-19 as follows:

   “During … 2017, I allowed [Y] and [X] to travel to Queensland with MR GREENE and his partner, MS D, as I believed it would be a wonderful experience for the children and I trusted MR GREENE and MS D to take good care of them.  [X] and [Y] were very excited about travelling on a plane and have told me that they had a wonderful time in Queensland with MR GREENE and MS D. 

   Because the children enjoyed Queensland so much, I was happy to allow MR GREENE and MS D to spend additional time with the children.  On the basis of this, [Y] and [X] spent time with MR GREENE and MS D from Friday of 24 June 2017 until Sunday 26 June 2017 at their home in Suburb M.  The children were happy to go with MR GREENE and happy when they returned home.  I was not aware that any issues had arisen during the weekend. 

   On 29 June 2017, I was shocked to be contacted by the Department of Health and Human Services (“DHHS”) and informed that an allegation had been made about MR B assaulting [Y].  The allegations were a complete fabrication but the Police applied for an Intervention Order against MR B on behalf of [Y] which MR B consented to without admissions.  DHHS have since interviewed the children and concluded that they are not at risk in my care.  The investigation is now closed and no charges have been laid against MR B. 

   The allegations made by MR GREENE have been extremely disruptive to my family and caused a lot of distress and confusion.”

5. Otherwise the affidavit responds to the affidavits of the grandparents.  They constitute total denials of any wrongdoing on the part of Mr B or otherwise.  Inter alia, the mother denied receiving abusive texts on 23 May from the father (something alleged by the grandparents).  Annexure D2 states inter alia:

   “I’m sorry for calling you stupid for taking the kids to Pas .  i don’t believe them at all like I’ve stressed to you several times but it’s happened anyway, I am sorry for fighting in front of the kids.  i was wrong of me to do that.”

6. While the general tenor of the text is unremarkable, it is clear that the father had insulted the mother and that they had had a fight of some sort. 

7. The next affidavit filed on 13 September 2017 is that of the grandfather.  In part, he essentially responds to the mother’s affidavit.  I note that the grandfather denied contacting the Department of Health and Human Services in that the grandfather denied making a report to the DHHS in June 2017 and said that this was reported by the school.  

8. An affidavit of Ms D filed likewise on 13 September 2017 is essentially responsive to that of the mother. 

9. The father filed an affidavit contemporaneously with his response on 15 September 2017.  He deposed to suffering from anxiety and occasional depression.  He detailed the commencement of his relationship with Ms E in 2013 and the birth of [J].  He deposed to being in jail between … and … 2016 and that he had subsequently breached his CCO.  He deposed having undertaken 30 to 40 drug screens all of which were clean and deposed to having seen a psychologist for treatment since February 2017 and having undertaken drug and alcohol counselling. 

10. Mr B filed an affidavit on 12 December 2017.  He was born on … 1990 and works as a tradesman.  He deposed to the commencement of the relationship with the mother and the birth of their three children.  His business was established two years ago and Mr B works very hard to support the mother and the children.  He deposed on a hearsay basis to the events in 2014 and denied any misconduct.  His affidavit essentially responds to those of the grandparents and denies any misconduct.  I note that he was contacted by DHHS on 29 June 2017 in relation to the alleged assault on [Y] which he denied.  He deposed that no charges have been laid.  He deposed at paragraph 16:

    “The allegations made by MR GREENE have been extremely disruptive to our family and caused significant distress and confusion.  I believe MR GREENE is vindictive and vexatious and will continue to do whatever he can to discredit me and undermine my relationship with MS DUMAS and the children.”

11. He also deposed to the inconvenience of the order that he not be left alone with the children.  I note that at paragraph 9(m) he went so far as to say that:

    “It was MR GREENE who made the allegation to the school principal and I believe he did so in the interests of discrediting me and undermining my relationship with [Y] and [X].”

12. The next affidavit filed was that of the father on 15 March 2018.  He sought unsupervised time with the children and deposed to having unsupervised time with [J] since late 2017.  He deposed again to clean drug screens and appended to his affidavit a report from his GP and a psychologist.  I note he had been in drug and alcohol counselling since August 2017.  He readily conceded taking drugs in 2015 together with burglary and theft leading to two months in jail.  He is presently subject to a 24 month CCO.  He’s presently under a CCO for a further two and a half years.

13. He went on to depose to the incident on 3 February 2018 between the grandfather and Mr B and he sought that the children live in his care. 

14. The mother also filed an affidavit on 15 March 2018.  She deposed to the children being taken to Town L without her permission on 12 January 2018 and deposed to the incident on 3 February 2018 involving the grandfather and Mr B.  She deposed that DHHS attended on 4 February 2018 together with police officers.  The children were removed from the mother, but on 5 February 2018 the Children’s Court at Town N returned the children to her care.  An Intervention Order was made against the grandfather on behalf  of the mother and the children. 

15. At paragraph 20 the mother deposed:  “I want MR GREENE and his bullying behaviour out of my family’s life once and for all”. 

16. The grandfather filed an affidavit on 15 March 2018.  It likewise traversed the incident on 3 February 2018, in terms that placed Mr B as the aggressor.  I note from annexure G3, the mother, subsequent to the assault in February, put a message on Facebook:  “Did u learn ur lesson now, you old c**t?  Stay away from my house”.  

17. Ms D filed an affidavit on 16 March 2018.  She deposed that the contact from the DHHS on 4 February 2018 arose out of a report by Town E Police.  She annexed photographs showing Mr Greene in hospital following the assault.  She also deposed to reports from a DHHS worker to the effect that [Y] had been found walking in his pyjamas three kilometres from home.  

18. On 17 August Ms D filed a further affidavit.  Relevantly, it added a disclosure that [X] had recently raised concerns that the car in which she was travelling was being followed.  She also traversed an assertion by [X] that her mother and Mr B had told them that the grandparents had broken into their home, something that they denied.  She noted considerable absences from school on the children’s part and that [X] had been bought an adult bra type top. 

19. The maternal grandmother, Ms K, filed an affidavit on 17 August 2018.  She was born on … 1967.  She deposed to a difficult childhood on the mother’s part and deposed at paragraph 10 in relation to the 2014 incident:

    “I had also noticed from looking after [X], that she became very distressed when I tried to change her nappy.  Her reaction was extreme.  I said to Ms Dumas that [X] had complained about pain around her pubic area, and I was concerned that Mr B may have behaved inappropriately with [X].  I said:  “I think Mr B has done something to [X]”.”

20. This is plainly the origin of the 2014 incident. 

21. The grandfather filed yet another affidavit on 17 August 2018.  It complains inter alia that Mr B had been allowed to take [Y] without another adult on a camping trip and [X] to the cinema.  He also annexed as G02 email posts from Mr B which are derogatory of the father. 

22. The mother’s responding affidavit filed on 21 August 2018 deposes to her understanding of the orders made on 20 March 2018.  At paragraph 34(h) she deposed that she was as far as practicable to ensure that Mr B was not left alone with the children or either of them.  That was, indeed, the terms of the order.  

23. The mother filed her final affidavit on 21 August 2018. She deposed that [X] was diagnosed with vulvoaginitis in 2014 (this explaining the child’s extreme reaction recorded by Ms K)

24. She repeated her denial of the alleged assault by Mr B on [Y] in 2017.

25. She deposed that following the incident in February 2018 the grandfather pleaded guilty to assault on 24 April 2018 and was placed on an undertaking to be of good behaviour for 12 months. 

26. At paragraph 58 she deposed to being fully aware of Mr B’s criminal history and stated:  “Prior to MR B and I living together he was diagnosed as suffering both Asperger’s Syndrome and Bipolar Disorder”.

27. She deposed that Mr B had disclosed to her that he had pleaded guilty to a charge of indecent assault when aged 13 and had offences for burglary, trespass and attempted burglary during 2015 and 2016.  He had also been acquitted of rape (a matter I do not propose to take further because the acquittal must be accepted).  The mother repeated that she wanted the grandfather out of her life once and for all.  I note that the children were all said to have good relationships and that [Y] was particularly close to [H].  The mother set out the orders she wanted at paragraph 79.

28. I note that at paragraph 80 the mother admitted:

    “I understand that I have made mistakes over the years, I have tolerated being subjected to family violence by first MR A GREENE and then MR B in the early years of our relationships.  I have also at times not been as careful as I could have been to protect the children from arguments.”

29. The father filed a further affidavit on 23 August 2018.  He annexed

    
    

    a letter from his GP and a copy of his mental health plan.  He further provided letters from a psychologist, Mr O, whom he had been referred to under that plan.  He added that he sought a psychiatric assessment of Mr B in the light of the recent disclosures and he annexed abusive posts on Facebook by Mr B. 

The DHHS Report, 2 June 2017

1. The DHHS section 67Z response is on the court file.  It noted under

   
   

   a heading, 2/06/2007- Ongoing - Protective Intervention, that there had been a current report in June 2017 which raised concerns for the children in the care of the mother and Mr B.  The concerns were with regard to inappropriate physical discipline perpetrated by Mr B towards [Y].  

2. The report continued:

   “It was assessed that further Child Protection investigation and assessment was warranted.  A visit was conducted by Child Protection in June 2017 and Ms Dumas and Mr B denied any physical discipline towards the children.  Ms Dumas and Mr B presented as difficult to engage and only provided limited information to Child Protection.  Ms Dumas acknowledged she and Mr B argue however denies physical family violence.”

3. The report continued:

   “[Y] and [X] were interviewed in June 2017 with [Y] making disclosures of physical abuse perpetrated by Mr B.  [Y] disclosed Mr B had thrown him and threatens him with a belt.  [Y] disclosed an incident that occurred when he was asked to feed the family pets.  [Y] advised Mr B thought he had not done this correctly and as a result Mr B grabbed [Y] by the back of his shirt and [Y] hit his leg and cheek on the toilet with the toilet seat breaking.  [Y] disclosed having a bruise on his cheek, however, at the time of interview this was not visible. 

   [X] disclosed that when Ms Dumas and Mr B have arguments they are physical and often hurt each other.  [X] did not disclose any physical abuse towards herself or [Y].

   A further report was received with the same initial concerns of physical assault towards the children and inappropriate discipline and the children being intimidated by Ms Dumas and Mr B to not disclose or talk to anyone regarding the concerns.”

4. The other matters in the response are historical or of no moment. 

The Exhibits Tendered at Court

1. Exhibit ICL3 is Mr B’s criminal record.  It shows that Mr B was still being dealt with by the courts as recently as 2016.  I note that on 24 March 2016 at Town P Magistrates Court under the heading, Result, this is recorded:  “The accused may be at risk due to the following:  Risk of self-harm, psychiatric illness undiagnosed, disability/illness”.

2. Exhibit ICL2 is an extract from the subpoenaed material from the Department of Health and Human Services.  Under the heading, 02/06/17 to 27/12/17.  Under the heading, Current CP Intervention, it is recorded:

   “Child Protection received a report for the safety of the children in June 2017, due to allegations of physical harm towards the children by Mr B.  Children were interviewed, [Y] disclosed the harm received.  Parents denied any physical discipline.”

3. The report continued:

   “Follow-up home visits + interviews at school occurred whereby no concerns or disclosures were made – Although no clear evidence of this  Child Protection are concerned the children have been told not to disclose anything further to CP – this may be coming from both Maternal and Paternal family members. 

   During follow-up with the children school Child Protection were informed of Mr B’s inappropriate behaviour towards staff which has led to the School implementing safety plans such as duress alarms when communicating with him and advising Mr B where he is and is not permitted on the property.”

4. Exhibit B2 is a screenshot posted by the mother on 21 July 2016 which asserts her opinion of the DHHS as:

   “DHS = child protection my fucking ass

   So, so fucking made right now.”

   The mother admitted making this post.

5. Exhibit B1 is a further extract from the DHHS material, being page 148 of 329, which relevantly records:

   “When asked if anything was worrying at home [Y] spoke of an incident at home. 

   One day I was changing the water and food for the cats then

   
   

   I went and played.  Mr B went in the laundry.  It was done and Dad (Mr B) didn’t check it.  I went to play and he called me again.  He talked and then he threw me.  My back hit the toilet.  The toilet seat broke.  I went to mum and they started arguing

   
   

   we stayed with Pa and went to Queensland for 8 days.  I didn’t tell Pa because mum told me not to. 

   [Y] later said he told Pa that Mr B hurts us. 

   When he threw me he grabbed me by the back of the shirt and the toilet seat hit on my leg and my cheek hit the bottom.  (Clarified later top was the system).  I only got a bruise on my cheek and I told mum and they argued.  Mr B has hit her before but he didn’t this time.”

6. A Police Officer Mr Q asked for clarification and [Y] confirmed in more detail a version of the assault.  He also asserted:  “[X] gets hit by the belt because [X] doesn’t eat her dinner.  The other kids don’t get hit”.  [Y] also disclosed Mr B hitting the mother with the back of his hand and disclosed a further assault the previous year. 

7. Exhibit A1 is a record of the father’s criminal history.  It is consistent with the matters already recorded.  Exhibits R2 and R1 I will deal with when I come to the matters recorded at court. 

The Family Report

1. The family report of Ms C commences by traversing the current arrangements and the parties.  Ms C then traversed the proposals of the parties and the risk factors raised by the various materials.

2. In recording her interview with the mother, Ms C noted

   
   

   at paragraph 44 that:  “Ms Dumas is focused on sharing information on the other parties and deflected attention away from herself and
   Mr B”.

3. The mother asserted that the father was likely to go to jail soon and was still using drugs and had been violent during the relationship.  When asked about allegations made against Mr B she responded

   
   

   at 45:

   “If Mr B was abusive she would end her relationship with him immediately and he would end up being homeless.  She said, “Mr B can get angry and we can get angry and yell at each other, but generally he goes outside when we argue”.”

4. At paragraph 49 the report records:

   “When questioned directly whether Mr B has a criminal history, Ms Dumas appeared evasive and said, no, while avoiding eye contact with the writer.”

5. Ms C interviewed Mr B by telephone after she had received the DHHS reports and LEAP notes relating to him.  Ms C recorded that he was more open and truthful than Ms Dumas and admitted a police Intervention Order against him in 2013 on Ms Dumas’ behalf.  Mr B said the Intervention Order was not in place for long, because he was consistently with the family to support the mother and the children.  He acknowledged a long criminal history.  He admitted abusing drugs and alcohol in the past and admitted taking [Y] with him on a camping trip despite the restraint on him being alone with the children.  He was prepared to undertake forensic psychological assessment provided it was with his former psychologist.

6. The father in interview admitted his criminal history and drug use.  He maintained his concerns about physical abuse by Mr B.  I note that he had questioned [Y] about the alleged incident where he was said to have run off at 3 in the morning.  (Paragraph 66).  He complained that Mr B provokes him by getting the children to call him dad.

7. The grandfather was interviewed by phone and gave the most coherent history of concerns.  Unsurprisingly, the grandfather referred to the history of the trip to Queensland and the related matters. 

8. When interviewed [Y] wrote his name as [Y].  At paragraph 76 Ms C recorded: 

   “It is significant to note that [Y] has a knowledge of adult issues, from the perspective of his mother and step father.

   
   

   It needs to be noted that the children were minded by Mr B before their interviews with the writer.”

9. [Y] presented as very attached to his sister, [H] and described both his parents as caring and helpful and Mr B as “loving, caring and a great dad”. 

10. At paragraph 78 the Report notes [Y]’s knowledge of the February 2018 incident: “Mr Greene came to our house, which is a private property because he missed a weekend with us because he was not there on time”.  The use of the phrase “private property” by so young a child is of note.  I note that [Y] did want to spend time with his father but wished to do so at the grandfather’s home not at Town R.  Ms C noted at paragraph 80:  “It seems very likely he was coached to share these views as he was unable to provide reasons”.

11. [Y] also disclosed in that paragraph:

    Mum told me he was doing drugs before, but he has stopped now because he has to do the piss test and he sometimes gets it done when we are with him.

1. [Y] denied being physically disciplined by Mr B.

2. When interviewed [X] likewise used the phrase “private property”.  When asked if she was scared of Mr B she said, “no, I really like Mr B” but went on to say:

   “Years and years ago people think Mr B threw [Y] to the toilet…but the toilet is too far and [Y] was not near the toilet…I think they are trying to get mum and Mr B in trouble.”

3. The interview is otherwise largely unremarkable save that [X] described Ms D locking [J] in the bathroom because she would not eat her food. 

4. The children were seen by Ms C in the company of Ms Dumas and Mr B, the grandparents and the father.  The children were well behaved and acted positively with Ms Dumas and Mr B.  They appeared excited and happy to see the grandparents.  And the children chatted enthusiastically with the father when he attended.  As Ms C recorded at paragraph 97, “Overall, the children interacted easily and positively with all the adults and enjoyed time spent with all of them”. 

5. In her report under the heading, Evaluation, Ms C set out the parties’ concerns.  At paragraph 101 Ms C opined: 

   “In relation to Ms Dumas, this writer is concerned about Ms Dumas’ denial of any problems in relation to Mr B.  She absolutely denied that he has a past criminal history, when Mr B admitted to a long criminal history since he was 12 years old.  Ms Dumas also denied family violence although Police obtained an Intervention Order against Mr B to protect her in 2013.  These denials raise concern about her capacity to be a protective parent and to prioritise the children’s safety ahead of her need to maintain a relationship with Mr B.  Mr B was forthcoming about his long criminal history and alcohol problems, but did not acknowledge any abusive behaviour or family violence.  It is a concern that he continues to consume alcohol while the children are in his care, as does Ms Dumas to a lesser degree.  It is also concerning that Ms Dumas and Mr B appear to disregard the order that restrains Ms Dumas from leaving the children alone with Mr B.  She brought him along to mind the children during the family report appointment, which is a concern given that he is “the alleged perpetrator” according to the other parties.  Children are unlikely to disclose abuse or often retract abuse

   
   

   if they are not afforded in the environment of safety to disclose problems.  Mr B brought the children presents on the day of the appointment, which most likely influenced the children to present him in a positive light.  Another factor is that the children love their mother and siblings and are unlikely to disclose abuse if it may lead to their removal from the family unit.  The writer considers that the children lack maturity to offer views regarding their parenting arrangements that are in their best interests.”

6. At paragraphs 102-103 the report continued:

   “The DHSS response noted that [Y] and [X] made disclosures of physical abuse and exposure to family violence to Child Protection in June 2017 but is no longer willing to talk about the abuse.  It is very concerning that the children have detailed knowledge of adult issues in relation to the incident between Mr Greene and Mr B in February 2018, and offered information that moved Ms Dumas’ perspective on the incident.  It demonstrates that Ms Dumas and/or Mr B are not adhering to the order that restrains them from discussing Family Law issues with the children. 

   The writer is concerned that Ms Dumas and Mr B lack insights regarding their behaviour and actions that can emotionally harm the children.  Their reckless embroiling of the children in adult issues can also undermine the children’s relationships with the other parties.”

7. Ms C went on to suggest that it might assist the court to retain formal psychological assessments for all the parties and in relation to Mr B also a psycho-sexual assessment. 

8. The report noted the grandfather’s contribution to the incident in February 2018 but pointed out that he appeared to be the only party in the dispute with a prior clean history.  Ms C suggested that pending the testing of the evidence she considered the children may benefit from the single-shared parenting arrangement whereby the grandfather had a regular relationship with the children during the school week and one weekend a month to monitor their welfare and safety and intervene should the need arise.  She suggested consideration be given to three-way parental responsibility.  She recommended the children spend time with the father on alternate weekends and with the grandfather each Wednesday to Thursday and every fourth weekend from Friday to Monday.  Ms C recommended that the mother be restrained from leaving the children with Mr B alone at all times pending forensic psychological assessment. 

The Evidence Given at Court

1. What follows is taken from my notes.  Self-evidently, it is not a transcript but records matters I considered significant. 

The Evidence of the Paternal Grandfather, Mr Greene

1. Mr Greene adopted his affidavits as true and correct.  He confirmed that he seeks that the children live with him from Monday to Friday from school to school.  They can go to either parent at weekends and term holidays should be shared between the parents and time in the long summer holidays shared between the parents and himself.  

2. Under cross-examination by counsel for the father the grandfather confirmed that the father has now been clean of drugs for a year and is not under the influence of drugs.  He is a good father to the children.  It was good for the children to live with the father and spend time with the mother, but she was not protective.  He had not taken the 2014 allegations seriously.  

3. Under cross-examination by counsel for the mother the grandfather confirmed that the father lives with him.  He started off living in a caravan but now lives in the house.  If the father was to move out they would have to discuss the matter.  He lives close to the children’s school.  He used to be close to the mother and had a father/daughter relationship with her.  He had no concerns about the mother’s care of the children until the maternal grandmother told him.  The mother lived with him when she was young.  He still kept in touch with the mother.  The relationship between the mother and her own mother was strange.  The maternal grandmother said [X] was abused by Mr B.  He knew the mother had a partner.  His son also had a new partner.  He had not met Mr B.  The children did not say anything to him.  When the maternal grandmother told him he spoke to the step-sister too and rang the DHHS and police.  Then he went to the mother’s house and told her that the grandmother had concerns.   She had seen the mother hit [Y] across the head.  The children had been left in the car with a savage dog.  Then there was the sexual abuse allegation.  The mother was close to her own mother at that time.  He did not know that the allegations were untrue.  [X] had been to a doctor but the doctor made no report.  He did not accept that [X] had not been abused.  He denied pushing his way into the mother’s house to take the children.  He said either he or the father could take the children.  The mother told the children they were going on holiday with him.  No charges were laid against Mr B and the mother asked for the children back.  The children were returned to her and orders were made, including that there be no contact with Mr B.  For some months thereafter he had no time with the children as the mother changed her phone number.

4. The father was not aware of orders made in January 2015 when the father did not attend court.  He was not in contact with his son while he was on drugs.  He tried phoning the mother but go no answer.  He contacted the mother through Facebook in 2016.  The father was on drugs in 2016 but still had the right to see his children.  He would tell the mother if the father was on drugs and if this was the case he would be fighting the father.  He was aware that Mr B was in a relationship with the mother in 2016.

5. He had seen the children in 2016 to 2017 and there were no disclosures.  They were getting back to normal and the father was not around.  The mother had not asked him to take the children so that Mr B could be at the birth of her next child.  The mother told him that Mr B was taking his anger out on [Y].  She asked him to take the children to Queensland.  She said she did not trust Mr B with the children.  He had asked if they were fighting and she said “Yes”.  There was a text about a week beforehand to which he had replied, “No, we’re going on holiday”.  He does not know Mr B’s mother.  The mother proposed that the children stay with Mr B’s mother.

6. When she turned up at his house there was no mention by the mother of Mr B’s mother.  This was at 9 pm at night.  His partner got tickets and the children came with them.  They went in their pyjamas.  The children brought up the issue of Mr B.  When they arrived at the unit in Queensland [Y] said he had to feed the cat and was thrown against the toilet and hurt himself.  There were no bruises on [Y].  He said he would deal with it when they got home.  No other disclosures were made while they were on holidays.  He thought they would have the children longer because the mother had said one and a half to two weeks.  They were in Queensland for one week.  When they got back Mr B came and took the children to the hospital.  The next time he saw the mother he asked to talk to her.  This was three days to a week later and Mr B was not present.  He said he had concerns.  The mother said she had not said anything.  She said Mr B had taken his anger out on [Y].  The mother texted him about the DHHS but he had not contacted DHHS.  He went to the school on the first day back and introduced himself to the Principal.  He was taking the children to school.  He asked about attendance and he had told the Principal there were problems in the home.  The Principal had said he would have to notify DHHS, but he asked her not to.  He did not tell the mother he had spoken to the Principal because he knew she would deny allegations.  [Y] reported the injury to his teacher, who told the Principal, who reported it to DHHS.

7. Following this episode he had applied to the court.  He wanted to help Ms Dumas. 

8. He had always thought there was a restraint on Mr B.  He got in touch with the father about a year ago.  The mother withheld the children from the father.  It started when they separated.  He does not blame the mother for the father being on drugs.  It was contributed to by not seeing his children.  He thought that the mother was on a single parent pension and knew Mr B was there.  The grandfather had no concerns about the father with [J].  If the father was taking drugs he would have concerns. 

9. He knew that the father’s drug screens were clear and also knew that he was on medication for his rotten teeth.  If it was up to him he would have all five of the children until psychological testing was done.  He was not at the Children’s Court in 2018.  Only the father was present.  The children were given back to the mother.  He would have concerns even if Mr B was not there.  Five children is a lot for a single mother.

10. In February 2018 he turned up at the mother’s property.  He went to the drop-off point, but the children were not there.  He became aware of texts between the mother and father only after the incident.  He was the only one charged.  He was taken by ambulance from the police station to the hospital.  He had a cut to his ear and bruising on his ribs.  He was not aggressive.  There was no one out the front when he arrived.  All charges were dropped by the police.  He got a 12 month good behaviour bond.  The family report writer had not asked him what the court outcome was.  He told her what happened.  He did not tell the children that Ms Dumas stomped on his head 200 times.  There is an Intervention Order against him so he cannot go to the children’s school or the mother’s home.  He denied delivering a note to the mother’s neighbour.  He has not been near her house.  He had not been to the school for about 10 months.  When taxed with the note, exhibit R2, he said he had not typed it.  He had only heard of it today at court.  He did not put it in the neighbour’s post box. 

11. When asked about [Y]’s running away the grandfather said that DHHS told Ms D after the incident at the mother’s house while he was in hospital.  There is no reception in the area of the mother’s house.  He went home after the incident but the police then arrived and then he was taken to hospital.  He had not told the police there were firearms at the mother’s home. 

12. He had got home from Queensland and dropped the children off to school on the first day.  They did not have a uniform.  He then initially agreed he had not taken the children but later corrected himself.  He went to see the Principal. 

13. He wanted to send an email before he saw the family reporter.  He wanted to say how he got involved in the circumstances.  He admitted sending the email R1 to Ms C.  When asked about paragraph 52 of his affidavit filed 17 August 2018 the grandfather said the matters described in paragraph 52 occurred in February 2018.  (The mother and Mr B dragging the children around by their hair).  He said they were telling them this.  He rang DHS but got the same answer as always.  DHS had not asked him to take [J].  DHS asked him if the father was living with him would he supervise the father’s visits with [J] and he did so. 

14. The grandfather said he had taken the children to school on the first day after Queensland and that they did not wear their uniforms.  This evidence was given with complete sincerity and conviction and I accept it. 

15. The grandfather said that if what the children said to him was untrue they should receive counselling.  He had written to Ms C because he was due for a one hour phone call and this was not enough. 

16. The grandfather went to the school with Mr A Greene and they got the school materials.  He wanted to make sure the children are safe.  The mother and father are not competent to make decisions because they do not get on.  There is not much talking at changeover.  The father does not wish to speak to the mother.  He had no problem with the children calling Mr B dad.  The relationship with Mr B was important. 

17. He and Ms D had taken the children to Town L.  He did not tell the mother because she was not at changeover.  They are not on speaking terms.  He did not see her.  He would contact the mother in an emergency.  He did not understand that the orders did not permit him to go to Town L.  The father did not come but that was because he could not afford it.

18. Under cross-examination by counsel for the Independent Children’s Lawyer the grandfather confirmed that communication was the key.  There are no communications between him and the mother.  He agreed that Ms Dumas had more chance of negotiating with him than with Mr A Greene.  He was less short-tempered than Mr A Greene.  He denied being a bully to the mother, but accepted that he had disrupted the mother’s family.  This was because there was something wrong in the house.  He was still concerned about sexual abuse.  He is concerned about the 2017 assault on [Y].  He was aware that [Y] spoke to DHHS in 2017.  He did not know that the mother was present when [Y] was thrown into the toilet.  The mother said, “Mr B is taking out his anger on the children”.  This was not a text.  The night before there was a text from the mother that she was coming over.  The mother came and said Mr B takes his anger out on [Y].  They went inside.  Ms D tried to get tickets.  They got a later flight.  The mother used to text Ms D a lot.  They had been to barbecues together.  After the court case there was not much contact.  Ms D contacted the mother and the mother said, okay if time was supervised.  They went to a park in Town P and this became quite frequent.  The mother said they had been fighting.  Mr B calls [Y] names. 

19. Mr A Greene had only been to jail once for two months.  He did have trouble with drugs.  He did not have a driving licence.  The mother had not told him in 2017 that Mr B had psychiatric issues.  He only found out when he read the reports.  [Y] had said there was a bruise on his cheek but he had not seen it.

20. When it was put to him that there was constant coaching by all family members and that he was questioning the children he denied this.  In Queensland he had said, “I will talk to mum and Mr B when I get home.  Let’s not talk about it now”. 

21. When counsel put it to him that [Y] wants the adults to get on the grandfather said, “In the future we’re going to have to lay down our arms and talk.  It will be difficult.  We don’t talk.  I don’t know how we would do it”.  He was amenable to seeking professional assistance in this regard. 

22. The grandfather was cross-examined about the altercation with Mr B in February 2018.  He received serious injuries.  He went to their home.  He had not been invited.  The first blow was struck by Mr B.  Ms Dumas was on the phone to the police.  Mr B was to one side.  He moved forward and tried to hit him and he blocked it.  He stuck his finger in his eye and grabbed him.  They fell down and the mother stomped on his head.  Mr B was yelling, not him.  He got up.  Mr B handed him his shoe and told him to leave which he did.  He did not know if the children had heard this.  The children had raised it with Ms D.  He could see the children in the house.  He did not expect the incident.  He wished he had not gone.  When the children were not at drop-off he would have to tell Mr A Greene and Ms D the children were not coming.  A police officer said go to the house and he went to see if the children were safe.  He was charged, not Mr B.  There was a three year Intervention Order against him which stops him going to the school.  He has no issues with the school.  The mother does not like him attending school, but he does not know why.  He is a better carer than Mr A Greene.  His work hours are more flexible and he can get the children to school.  He is not concerned about Mr A Greene and drugs.  He has had clean screens and he is not the same person when he was on drugs.  When on drugs he could not have concentrated and could not have worked.  He is now different and you can have a conversation with him and he is working.  Mr A Greene had never told him about a 2015 incident with Ms E.  He would like to take the children to Queensland for holidays.  He can do so.  He would like Mr A Greene to have his own relationship with the children and believed he was safe with them.  The father’s time should start small and build.  The children are comfortable with him.  They could take one day at a time.

23. He had always had a close relationship with Mr A Greene.  He had advised him against Ms Dumas but he had not listened.  Ms Dumas was estranged from her own mother.  He had not asked why.  Over time she had contacted her mother.  In 2014 the maternal grandmother had made allegations.  This was hard.  He did not know who to believe.  But the allegations had come forward.  When asked what was good about Ms Dumas as a mother he said he found it difficult to answer (this appeared to be because of the allegations made).  His concern was not knowing.  Too many things had been said which were untrue.  He had considered Ms Dumas as his daughter.  The children had always lived with their mother as primary carer.  No one likes to shift.  It would affect the children.  He would not change school.  He has wholly flexible working hours and would do drop-off and collection.

24. Mr A Greene does a lot that he did not do as a parent with his children.  He would want minimal involvement on the part of Mr B. 

25. In re-examination the grandfather confirmed that if the father leaves the grandparents’ home he would like the children to remain with him nonetheless. 

The evidence of Ms D

1. Ms D adopted her affidavit as true and correct.

1. Under cross-examination by counsel for the father, Ms D confirmed that she spent a lot of time with the children.  The father is living with them and is a good dad.  He loves the children and looks after them appropriately, and takes them to extracurricular activities such as football, drawing, painting, and the like.  There are no risk factors associated with the father, who has not been under drugs since 2016.  She supported the children living with the father.  She had concerns about the mother and Mr B.  Mr B had been violent to [Y].  She believed the sexual abuse asserted against Mr B on [X] in 2014.

2. Under cross-examination by counsel for the mother, Ms D admitted writing exhibit R2.  She wrote it three weeks ago.  She had rung Ms S at DHS every day for a week.  The neighbours had said [Y] was in pyjamas.  She wanted the neighbours to contact Mr Greene, which is why she had signed it.  Mr Greene did not know she had sent the letter.  She asked a girlfriend of hers to drop it off.  She was not going to go near the mother’s house.  She had been told that [Y] was in pyjamas. 

3. She had taken a photograph of [X]’s eczema, which [X] wanted.  She had not taken these photographs for court.  As Ms Dumas has only sent [X] with cream for her eczema in February.  Ms Dumas has sent her a message with bin numbers on it.  She had handed back a motorbike key and a portacot also taken from the factory.

4. When asked what was good about the mother, Ms D replied there was nothing bad but nothing stands out.  She talks to the children appropriately. 

5. Ms D said she had never locked a child in the bathroom.  The lock is on the inside.

6. Ms D said, “Ms Dumas walked into our house the night before we went to Queensland”.  The disclosures were only made to her and Mr Greene.  She had photographed [X]’s legs as she had asked her to do so.  She does not know Mr B.  At barbeques Mr B had kept his distance.

7. Ms D was cross-examined about the instance in 2014.  She said they knocked on the door and Ms Dumas invited them in.  Mr Greene and Ms Dumas went outside and a half an hour later they left with the children.  She was in the car with the kids and Mr Greene was separate.  After the children went to bed, they decided that they were having the children while DHHS and police looked into the allegations.  The mother asked for the children three weeks later, but they said no on advice.  Then there was a recovery order.  The mother moved the same day she got the children and changed her phone.  The father was not seeing the children.  She had contacted Ms Dumas in late 2015 to 2016 and renewed relationships.  She thought everything was fine.  She saw Mr B twice and just said “hello”.

8. Ms Dumas sent a text because she was going into hospital.  They replied they were going to Queensland.  Then there was a message Mr B was happy to look after them.  Mr Greene was disappointed but not upset.  Mr B was not happy for the children to go to Queensland.  She got a text at 8 pm saying, “Please be home.”  Then the mother turned up.  Mr Greene opened the gate.  Ms Dumas was upset when she arrived.  She came up on her own.  She had had an argument with Mr B, who had come home in a bad mood, then there was an argument.  They asked the mother in for a cup of tea and Mr Greene got the kids out of the car.  Ms Dumas asked if they could take the children to Queensland.  She was not happy leaving the children with Mr B.  The children were present during this conversation.  Ms Dumas said when Mr B is angry he takes his frustration out on [Y].  Ms Ds had got on the phone to see if they could get tickets.  When she got the tickets, Ms Dumas and she were in the kitchen.  She asked Ms Dumas to explain why the children were going to Queensland, and she replied, “I don’t trust Mr B.  I want them to be safe.”  The children came into the kitchen and told the story about the cat.  Mr B threw [Y] into the wall.  [X] said she tried to reason with Mr B.  Ms Dumas said she was there when it happened.  The children left the kitchen.  When asked why Mr B did not want [Y] to go on a holiday, Mr B said [Y] was a little fiend and did not deserve a holiday.  Mr B was texting her but she did not read the texts.

9. There were shorts, t-shirts, and three sets of pyjamas in total.  The children, in fact, went onto the plane in their pyjamas at 6.30 am.  The clothes in the bag were clean.  She had not questioned the children about Mr B.  The mother has told her that if she questioned about her then they would not see the children.  She said not to question anything she did.  The children had been coached to say stuff and coached to say bad things about their father.  Mr B does not like [Y] and [X] and the mother is not responding appropriately.  They do not ask about Mr B and the children do not say.

10. The children had told them two visits ago they would move to Queensland, something intimated by a mechanic who was doing work on both Ms D’s and the mother’s car.  She believed that the mother and Mr B dragged the two younger children by the hair.

11. When they got back from Queensland, the children were handed over to Mr B.  The mother was getting out of hospital that day.  They got back on the Thursday night and the children went to school on Friday without uniforms.  Mr B had come on the Sunday.  They went to see the Principal to let her know the children were with them.  She went and met teachers.  There were no problems about the uniforms.  She had asked Mr Greene if he had told the principal what had happened and he said “no”.  [X] has said that Mr B has brought her a bra, which she did not consider appropriate.  She had never seen Mr B and the father together but Facebook entries were pretty horrible.  She had not texted the mother about Town L.  Mr Greene was going to tell her at changeover but she did not turn up.

12. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms D confirmed that the mother did not want questions about her home or the children.  They had not had a problem with Mr B initially refusing the travel to Queensland.  The problem with this is with [Y].  She deflects [X] when she’s talking about her home and changes the subject.  She does not want to question [X].  When it was put to her that DHHS thought everyone was coaching, she said she did not.  She always deflects. 

13. Ms D confirmed that [Y] and [X] had been present at the conversation in the kitchen between her and the mother and agreed that this was inappropriate.

The evidence of Ms K

1. Ms K adopted her affidavit as true and correct.

2. Under questioning by counsel for the father, Ms K supported the grandfather and father.  She had had concerns with the mother’s anger as a teenager.

3. Under cross-examination by counsel for the mother, Ms K confirmed that she had told Mr B at court that she would prefer not to be here.  She was not happy about taking the children from the mother.  The mother had a difficult childhood.  She had heard [Y] screaming in 2011 and seen the mother beating him.  She did not know if Ms Dumas took [X] to doctor with a rash.  She later told her that the whole incident was a lie.  There was no evidence [X] was assaulted by Mr B, it was just a matter of [X]’s reaction.

The evidence of the father

1. The father adopted his affidavits as true and correct.  He is undergoing a CCO for 30 months, which commenced on 9 February 2018. He lives with the father and wants the children to live with him.

2. Under cross-examination by counsel for the grandfather, the father gave further details of his CCO.  These include random drug screens.  He has undertaken a drug and alcohol assessment and been assessed as low risk of re-use.  He has distanced himself from drug users.  He has a good relationship with his own father who is very supportive. He intends to get a place of his own but there is no timeframe. 

3. Under cross-examination by counsel for the mother, the father confirmed he has zero relationships with the mother.  He is willing to work on his relationship with the mother.  Their arguments are always petty.  He is not bothered that the mother has re-partnered.  This is all well out of hand.  He started taking drugs at 14 and continued until December 2016 on and off.  This was mainly marijuana.  He only used ice a handful of times.  In 2015 he took more ice. 

4. He had not attended the family report.  He had very little faith in the court system.  There could be an innocent explanation for the 2014 incident.  He had recently obtained employment.  He does not have his own car and lives at his father’s home.  He does not get much time alone with the children. 

5. Both of the children told him about [Y] being thrown.  The school called DHHS.  He asked, “What’s going on with Mr B?”  [Y] said he had fed the cats but then had been thrown and hit the toilet.  [Y] told him he had a bruise on his cheek but he had not seen it.  Mr B had told [Y] that he has more control over him than the father does.  When the father asked [Y] about running away, he said he had pushed out the wire in his sister’s room and got away.  He had told him that he could ring him and that he would come and collect him.

6. In February 2018 he got a message [X] had been sick all night.  Another message did not come through until after an incident.  He was very reluctant to go to changeover.  The mother is provocative.  He sent his father.  The mother had withheld the children multiple times. 

7. The father was adamant he had not taken drugs since late 2016. The mother had not agreed he sees the children and said the children would come and see him when they are ready.  From 2014 to September 2015 the mother had not made the children available at least six times.  On one occasion there was a problem because he gave [X] formula.  The mother’s opinion means very little to him.  She does not want a relationship with him.  He said if he moved the children would live with him.  He had met Mr B a handful of times.  Mr B was not respectful.  He did not speak to him because there was no reason to.

8. The father conceded the children are good and doing well at school.  [Y] is withdrawn, however, and it is often hard to get him to talk.  He is angry but the father does not know why.  He did not know if the mother knew he texted every day.  The mother and he cannot make joint parental responsibility.  After the court proceeding is over, she will think she can dictate what he can do with his children.

9. There was DHHS involvement with [J] after his release from jail.  There were bogus reports in 2017.  He had been on drugs and stealing cars.  This was in 2016 and was finished by 2017.  [J] was placed with her mother’s brother. 

10. At the moment he was staying at his father’s house.  He only spends random nights at Town N.  He did a drug screen last Saturday which was clean.  He has volunteered for a drug and alcohol program and last took drugs in late 2016. 

11. The father said he is quick to anger and used to get super angry and get in fights.  He had not assaulted his partner in 2015.  He tries to have [J] with [Y] and [X].  It is important that they have a relationship with the mother’s other children too.  He would propose the mother have Friday to Monday with a restraint about Mr B.  His son had told him he was thrown into a toilet.  [Y] tells him that Mr B says he has more control over him.  Mr B does not allow [Y] to call him dad.  They have to call him dad.  [Y] told him about the camping trip but did not tell him there was a friend there.  [Y] was positive about the mother and Mr B. 

12. Under cross-examination by counsel for the Independent Children’s Lawyer, the father said there was mental abuse on both children, telling them they cannot come in the car with him.  Every time he sees the children, they question him.  They ask about drug screens and stealing cars.  The first time the children did not want to come in the car. The next time [Y] did come with him but [X] did not.  She went in Ms D’s car.  [Y] got into trouble for this.  The next time [Y] did not come with him.  He got his licence out and showed it to [Y], contradicting what the mother says.  He had conceded that this was involving children in adult issues.  There is conflict between him and the mother. 

13. The mother is super provocative and Mr B is not quite as provocative.  He wants equal shared parental responsibility.  He has no communications with the mother at present.  He was prepared to have communication with her.  The mother had not told him the children were seeing a counsellor and he did not know why.  [Y] told him this after March 2018.  He had not asked the mother about counselling.  He said it was important for them to agree.  He had not been involved but wanted to be.  He did not believe it would work but was prepared to try.  If the mother had sole responsibility, he would be cut out of the children's lives.

14. He had not taken drugs in jail.  He then complied with his CCO for a brief period but then had a relapse.  He had a mental health plan in 2017 but no report had yet been provided.  He was not engaged with a professional about his low mood and associated difficulties.  His life is not necessarily 100 per cent turned around.  He still experiences low mood. 

15. His father is a significant support.  There are good relationships between the children and the grandfather.  If the children live with him, it will be difficult for them.  He has not told the children that Mr B is delusional.  [Y] knows that the grandfather and Mr B do not get on.  He did not know how to facilitate them getting on.

16. In re-examination the father said the mental abuse by the mother is grilling the children after their time with him.  This was, however, only an assumption on his part.

The evidence of the mother

1. The mother adopted her affidavits as true and correct.

2. She denied planning to move to Queensland.  She was planning a holiday because she has school friends up there but is not now going.  She had been followed by a vehicle and also by Mr Greene’s work car.  She does not drag the children around by their hair.

3. Under cross-examination by counsel for the grandfather, the mother confirmed that she first lived with him three weeks before she turned 16.  She had had a relationship with Mr A Greene for quite a few years.  She had a troubled relationship with her mother.  She stayed until she graduated her VCE.  Mr A Greene also achieved VCE and Mr Greene was a father figure.  There was a bungalow at the back for them.  She trusted the grandfather then.

4. The mother confirmed that Ms D had made an approach to her in January 2016.  She was reluctant but was open to a relationship with the grandfather.

5. She agreed that the grandparents had volunteered to pay school fees.  Mr Greene spent time “at my disposal”.  She was present.  The last time he had the children he gave them to their father.  Mr Greene should have no court appointed time with the children.  Mr A Greene lives with Mr Greene but she would prefer that Mr A Greene sees the children on his own.  There was an issue when Mr Greene had taken the children to Town L.  She did not know where they were.

6. The mother was cross-examined about the May 2017 incident.  She contacted Ms D when she was due to give birth.  She agreed that she asked if that would be an option.  Ms D said they were going to Queensland.  She was not sure as this was the children’s first holiday.  She would have preferred to have done it herself.  She said she had decided they would stay and not go to Queensland.  Mr B’s mother would look after the children if necessary.  She changed her mind the night before they left.  She meant to say, “Please are you home?” She turned up later and was not in tears and not upset.  She asked them, “Would you mind taking the children to Queensland?”  She had been in pain for quite a few days.  She had fears her daughter would come early.  The plan was that Mr B’s mum would look after the children but she was trying to make it easier for her. 

7. It was put to her that she did not trust leaving the children with Mr B but she responded that if she did not trust him he would not live under her roof.  She had never said the children were not safe with Mr B.  She told [Y] he would be safe as he was scared he might not return from Queensland. 

8. The mother denied that the alleged assault on [Y] had occurred.  [Y] had not fed the cats.  She did not say when Mr B gets angry he takes it out on [Y].  Everyone gets angry.  Mr B has never struck [Y] or thrown him.  She does not remember the alleged statement, “He’s a little cunt.  He does not deserve a holiday.”  This was a complete fabrication by Ms D.  She had never struck [Y] on the head or thrown him downstairs.  [Y] said this to DHHS after the holiday in Queensland.  She was not surprised after a week with the grandfather.  When she was told, she was shocked.  [Y] had been coached to say this.  She did not consider for a moment it had happened.  The first she knew of the alleged assault was the DHHS visit.

9. When challenged with the police report alleging that [Y] was thrown two feet into the toilet, she denied that this had taken place.  The child had not spoken to her.  Aspects of the report did not make sense to her.  The cats do not have two water bowls.  The children put their plates in the dishwasher.  Mr B has never thrown any of her children.

10. When cross-examined about [X] in 2014, the mother said she became aware when Mr Greene knocked on her door.  She was shocked.  The allegation was not true.  She spoke to Mr B about the allegations.  She was aware that he had a police record for sexual assault and also that he had been acquitted of a rape charge.  She was concerned the children would be removed from them.  The Intervention Order in 2013 was taken following an argument between her and Mr B.  The children were not exposed to it.  Police took out the Intervention Order against Mr B. 

11. She left Town P because of the arguments with Mr B.  She flies.  She does not stand and fight.  A neighbour had called the police because they were yelling in the backyard at 9.30 at night.

12. The mother was asked about the 3 February 2018 incident.  She sent a text saying [X] was unwell the night before.  She asked the father if he would still want to see the children.  She did not hear back from him.  She knew that Mr Greene was there to collect the children.  By the time she got outside, he was being asked to leave and refused to leave.  She was on the telephone to police.  Mr Greene was the aggressor.  Mr B pushed him and they ended up on the ground.  She did not attack Mr Greene and did not stomp on his head.  She thought he sustained the injury when he fell.  He did not look like he was in the photographs when she left her house.  She told the police officer he injured himself later.  She would not put it past the grandfather to punch himself in the face on the way home as he was so keen to remove the children from her.  The children were unaware of the matter until DHHS came the next day.

13. When it was put to her that the children had used the phrase “private property” she said she had not discussed this incident with the children.  She was shocked the incident occurred.  Mr B did the best to protect himself and the rest of them.  She admitted the post in which she had told the father to stay away and called him a cunt.  She regretted posting it.

14. [Y] and [X] are upset at having different names from her.  This started when they started to call Mr B dad.  She was shocked.  She had never spoken to the father about changing their names.  [Y] was coached about this to say he wished to stay at Mr Greene’s and not at Town R.  She had not discussed the matter with [Y] before the family report.  She had not denied that Mr B had a criminal record to Ms C.  She had said his criminal history was history.  She did not believe that the father’s drug screens were clear. She complies with the restraint about Mr B as far as practicable.  Mr B went camping with [Y] and friends.  He had taken [X] to the movies.  The mother said, “I’m not going to deny her one on one time she has requested.”  She said she would believe [X] if [X] said that Mr B had hurt her.  It should be noted that the answers about Mr B spending unsupervised time with the children were extremely evasive and nonresponsive.

1. Not only this, but I have no hesitation in finding that the description given by the grandparents of the interviews leading up to their trip to Queensland are entirely accurate and that the mother’s denials are untrue.  It is common cause that the mother asked the grandparents to take the children when she was due to go in to give birth.  They said they were going to Queensland.  The mother then told them that the children would stay with Mr B’s mother.  I fully accept that Mr B said in respect of [Y], “The little cunt doesn’t deserve a holiday.”  Mr B’s language in court approximated such speech and, as I find, it is clear that he had indeed assaulted him at about that time.

2. Furthermore, the account given by the mother of the events of the night before the trip to Queensland simply does not make sense.  Why was it necessary to go over there at a late hour of night when the grandparents were due to leave very early the next morning, without, on even her version of the events, any prior indication that this was likely to occur?  Of course she went because she was scared the children would be at risk in Mr B’s care.  She had obviously had an argument with him as the grandparents described.  She panicked and went over with only a very small amount of clothing for the children, such that they were required to go onto the plane in their pyjamas the following day.  I should make it clear that I entirely accept the version of events given by the grandparents and, most particularly, Ms D, whose evidence about this matter was given with clear recall and in the most composed manner.

3. Thereafter the child, [Y], made disclosures to his teacher at school, which led to mandatory reporting in any event.  Typically with his abrasive and out of control personality, Mr B’s response to this was such that the school had to introduce measures designed to cope with his no doubt florid outbursts.  Although he has now mended his fences with the school, Mr B’s behaviour upon the making of the report by the school is entirely consistent with all the allegations otherwise made against him.

4. It should be noted that both the father and Mr B have serious criminal records which are by no means ancient.  It is a matter of concern that the mother should have been engaged in a relationship with somebody behaving as Mr B so clearly was in 2015 and 2016.  Not only that, but she went so far as to deny to Ms C that Mr B had a criminal history.  I entirely accept Ms C’s version of that conversation.  It should be noted that Ms C was a professional witness giving evidence within her area of expertise.  She was not moved, at all, in cross-examination, and her evidence is accepted in its entirety.

5. There matters largely rested until February 2018.  On this occasion, owing to a failure of communication, the children were not made available to spend time with the father in circumstances that were perceived to be unexplained.  Mr Greene’s decision to attend assertively at the mother’s household was extremely stupid.  He has an exaggerated notion of what he is entitled to do.  It is entirely to the discredit of both him and Mr B that the matter rapidly degenerated into a physical fight.  On the part of Mr Greene , he should have been able to ask in a polite and civil way where the children were, and on his part, Mr B should have been able to tell him.  Mr B jumped the fence and apparently saw his role as keeping his family safe.  This may well have its origins in the mother’s perception of the grandfather’s behaviour in 2014.  It is sufficient to say that both of the two major participants cover themselves in no glory whatsoever by that conduct which arises from their mutual antipathy and lack of insight.

6. Having made these findings, it is appropriate to turn to the statutory pathway. 

7. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]   In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.     The child’s best interests remain the overriding consideration.”

Parental responsibility

1. Curiously, given the intensity of the disputation in this matter, there is general agreement that there should be shared parental responsibilities between the two parents.  Ms C had recommended three-way parental responsibility, and the grandparents seek this.  The Independent Children’s Lawyer proposes, however, that it be shared by the parents.

2. This matter can be dealt with shortly.  In circumstances where none of the adults have any capacity to communicate with one another, and in my view seemed almost to glory in that without turning their minds in the smallest way to how it might be improved, the notion of three-way parental responsibility is self-evidently impossible.  It is for the parents to exercise this responsibility, and even for them it is going to represent a significant challenge.

3. The order as to equal shared parental responsibility having been made, the court has to consider equal time.  In the ultimate, no one is proposing it and it is plainly utterly unworkable.  This leads to consideration of a substantial and significant time within the meaning of the Act, which falls to be considered pursuant to the terms of section 60CC.

The primary considerations

1. Everyone agrees that it is in the best interests of these children to have a meaningful relationship with their parents.  The mother does not want the children to have any relationship with the grandparents because of her perception that they are maliciously seeking to take the children away from her.  The father and grandfather support time on the grandparents’ behalf.

2. It is plainly necessary to make orders that protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.  Pursuant to section 60CC(2A) this factor must be given greater weight.

The additional considerations - section 60CC(3)(a)

1. [Y] was clear that he wished not to be taken again from his mother and that he wanted to spend alternate weekends with his father.  His primary wish was that things could go back to normal with everyone getting along.  [X]’s favourite person is mummy but she also loves her siblings and both her father and Mr B.  Like her brother, one of her wishes is that everyone get along and not be so angry.

2. I note that Ms C thought that the children lacked maturity to offer views regarding their parenting arrangements that would be in their best interests.

Section 60CC(3)(b)

1. The children were noted by Ms C in the report and in her evidence as having a secure relationship and attachment with each of the adults in this proceeding.  They have, subject to DHHS intervention, lived always in the primary care of their mother.  Notwithstanding the reservations that I have expressed about Mr B, the fact is that they have lived with him also since 2013 and have expressed both in what they said and in their responses with Ms C a reasonable relationship with Mr B.

Section 60CC(3)(c)

1. The grandparents have by and large fulfilled their obligations. The mother has plainly, at all times, sought that the children live with her, and has been to court, successfully in 2014 and again in 2017, to ensure that they remain with her.  Indeed, it is her slightly paranoid fear that there is a conspiracy to take the children off her that has driven much of her behaviour in this case.  The father has not taken proper endeavours to spend time and communicate with the children following separation.  On his own account, he was in a bad place and he effectively dropped the ball in 2014 to 2015, and time did not resume for a considerable period of time thereafter, and even then only in the context of time at his father’s home.  The grandparents have, in my view, strongly sought to be involved with the children’s lives and to spend time with them.  There was, of course, a hiatus following the court case in 2014, but given that the mother moved and changed her phone, and would have been very hostile to them in any event, the gap until time was resumed at the end of 2015 to 2016, while regrettable, is easily understandable.

2. The mother has always been the primary carer of the children and has fulfilled that role entirely properly.  The grandparents have contributed to school fees from time to time.  The father does not pay child support and, in my view, has done but little to maintain his children since separation.

Section 60CC(3)(d)

1. The proposals put by the father and grandfather both involve taking the children from the mother.  This is so even though they have proposed different regimes.  It is well established on the materials that the children’s primary carer has always been their mother.  They are both devoted to each other and, more particularly, to their step-siblings, and [Y] has a particularly close relationship with [H].  Ms C acknowledged that any endeavour to remove the children from this household would be traumatic for the children although she said, and no doubt she is right, that they might ultimately get over it.  It would on any view, however, be an exceptionally difficult matter to transition into another household.

Section 60CC(3)(e)

1. There is no difficulty so far as expense is concerned of the children spending time with anybody in this case.  The practical difficulties relate to the mistrust and ill feeling between the parties, their incapacity to communicate in a civil fashion, and their mutual dislike.

Section 60CC(3)(f)

1. The mother is, in my view, able to provide for the needs of the children, including their emotional and intellectual needs, subject however to the obvious reservation that she struggles to protect the children from Mr B.  This is an important matter but it can be stated shortly in this fashion.

2. The grandparents can clearly care for the children and it is apparent that the children had a wonderful time, for example, when they went on holiday to Queensland with them.  The father is very much a work in progress.  While I accept that he is clear of drugs and has now obtained employment, he has, as Ms C rightly opined, got a way to go before there can be any question of him having the children in his predominant care.

Section 60CC(3)(g)

1. The mother is a woman who has had serial abusive relationships, including with the father and Mr B.  She minimises Mr B’s criminal past conduct and has knowingly denied the assault on [Y] took place in 2017.  Her inadequacy in this regard is serious.

2. Mr B is a man who has only in recent times turned his life around and obtained gainful employment.  He has had a significant criminal record until very recently.  He, as I have already indicated, struck me as a thorough going smart alec, loud, intimidating, and I have no doubt well capable of getting angry and abusing, at least verbally, anyone he wished to.  It is clear that he has on occasion, as the mother disclosed, taken his anger out on [Y].

3. The father, once again, has had a criminal history of some note until quite recently.  His record does not appear to be as long lasting or as serious as that of Mr B but is scarcely to be dismissed. He struck me as being, as I have said already, very much a work in progress, although the improvements he has made are to his credit.

4. The grandparents are decent and composed people with a settled lifestyle.  In the case of the grandfather, he undoubtedly has allowed his obsessive anxiety about the children’s wellbeing to get the better of his judgment, and his attendance upon the mother’s home in February 2018 was stupid and ill judged, as was his behaviour on that occasion.  Nonetheless, as I say, he and particularly Ms D struck me as being very sensible and mature adults.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. The mother and Mr B are a united front, united in their condemnation of the grandparents and, in effect, to a considerable degree of the father.  They are paranoid that the children will be removed from their care, and it is this, as I find, that has driven them to make the futile denials of the incident in 2017.  Nonetheless, this attitude does, as I find, spring from a genuine love and affection for the children.  Mr B has his weaknesses, and they are very important weaknesses, but I accept that he loves not only the two children with whom we are concerned but his other three children with the mother as well.  The father is improving his attitude towards his responsibilities as a parent and, of course, the grandparents have an entirely appropriate attitude towards the children, save that as I find they are clinging to ridiculous assertions of sexual abuse on Mr B’s part in 2014 and that this poisons their attitude towards him more generally.

Section 60CC(3)(j)

1. There has, of course, been family violence in this case.  Mr B lost his temper in 2017 with [Y].  He also, as I find, has hit on at least some occasions [X] with a belt.  He is well capable of such an action.  His breezy denials are not to be accepted.  The mother will, of course, cover up for him.

2. There has also been violence in the children’s lives when the grandfather attended in February 2018.  It is more probable than otherwise that the children were at least in part aware of it.

Section 60CC(3)(k)

1. There have been Intervention Orders galore in this case from time to time.  They reflect, of course, the failings of the parties from time to time.  They are, of course, important but it is not necessary to set out in greater detail their nature and the implications that flow from them because I have already dealt in terms with family violence.

Section 60CC(3)(l)

1. It is entirely desirable that this wretched conflict be brought to an end, so far as practicable. 

Section 60CC(3)(m)

1. Critical here, in my opinion, is the proposals of the Independent Children’s Lawyer.  The Independent Children’s Lawyer has proposed that the children live with the mother, subject to an order that she and Mr B attend and engage with a psychologist nominated by the Independent Children’s Lawyer to address the issues raised in Ms C’s report and comply with all recommendations of that psychologist.

2. In my view, this is a very important proviso.  The orders would also require the mother not to leave the children alone with Mr B without another adult present under any circumstances.

3. In the ultimate, the children have always lived with their mother as their primary carer, and to uproot them to go and live with the father is plainly untenable.  Although the grandparents would make good grandparents, they are not the biological parents of the children.  Given their primary attachment to their mother, and their close and devoted relationship with their step-siblings, it is instantly apparent that a change of residence cannot be supported.  Nonetheless, the violence of Mr B in the past must be addressed, and it will in part be addressed by the order for psychological counselling that the Independent Children’s Lawyer proposes.

4. In this regard I do not, as I have indicated earlier, think it is appropriate to send all these parties off for psychological and/or psychiatric testing.  There is nothing to suggest in any meaningful sense that Mr B is at risk of sexually abusing the children.  His indecent assault took place when he was 13.  The rape acquittal is irrelevant.  He did not abuse [X] in 2014.  His purchase of crop tops for the child, while puerile and misguided, is nonetheless not an indication that he has an unhealthy sexual obsession with her.  In my view, and notwithstanding the need to protect the children from violence, the children should remain in the primary care of their mother.  It should be noted that although there are other disclosures made by [Y] which would suggest further and more worrying violence on Mr B’s part, I am not in a position to make findings as to those matters as they were disclosures made on one occasion in passing and not corroborated, as the May 2017 matter was, by the mother’s contemporaneous disclosures.

5. This leaves the vexed question of Mr B.  The mother says, and it is readily apparent that it would be so, that the present orders are inconvenient.  Nonetheless, Mr B has a temper and a tendency to hit people.  In my view, there should be an order that the children never be left alone with Mr B, save in a public place where there are other adults present.  This will not prohibit such matters as taking [X] to the cinema, something not likely in any way to be dangerous to her.  Camping trips on his own, however, are out.  It is to be hoped that when this decision is absorbed by the parties, the mother and Mr B will, so to speak, relax from their hyper vigilant and defensive position and engage with professionals appropriately.

1. The times proposed by the Independent Children’s Lawyer for the father and the grandfather are, in my view, entirely appropriate.  They give the children an opportunity to engage with their father in a secure and safe setting while he continues to get his life together, and give them the opportunity to have the great affection of the grandparents who adore them.

Ancillary issues - changeover

1. Changeover, where practicable, should take place at school.  In view of the sheer hostility between the parties, it is appropriate that changeover otherwise take place at a police station, unless the parties can agree otherwise.  I will ask the parties to consider which police station they wish to nominate.

Counselling more generally

1. The counselling sought by the Independent Children’s Lawyer to enable the parties to learn how to behave like adults and to communicate more effectively is plainly and entirely desirable, and that order will be made.

2. The other ancillary orders sought by the Independent Children’s Lawyer are not, as I understand it, the subject of dispute.

Conclusion

1. These reasons for judgment, which self-evidently are lengthy, have I think traversed all the matters the parties have raised.  The orders proposed by the Independent Children’s Lawyer are plainly those that are in the best interests of the children.  It is to be hoped that now that the case is finished, all of the parties will, to an extent, take a deep breath and move forward in a more adult and child focussed manner than they have conducted themselves in the past.

I certify that the preceding two-hundred-and-forty-nine (249) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 12 October 2018