Hadley and Schrader & Ors

[2014] FamCA 550

FAMILY COURT OF AUSTRALIA

HADLEY & SCHRADER AND ORS [2014] FamCA 550

FAMILY LAW – CHILDREN – Best interests – where there are three applicants for residence and competing proposals – sibling separation – where each child has a primary attachment relationship with the other – where no primary attachment or no consistent attachment made with a parent – where the children do have a meaningful relationship with each party to some extent – discussion of s 60CC(3)(f) and the capacity of each party to provide for the needs of the children – where the mother in an insightless state poses an unacceptable risk to the children of neglect and abuse – where the mother returned two positive drug tests – children to live with the second and fourth respondents – children to spend time with the first and third respondent – children to spend supervised time with the mother

FAMILY LAW – CHILDREN – Parental Responsibility –  both children exposed to abuse, neglect and family violence in the mother’s care –  presumption of equal shared parental responsibility rebutted – parental responsibility to be shared between the first, second and fourth respondents in varying degrees

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62B, 64B, 65AA, 65DA

APPLICANT: Ms Hadley

FIRST RESPONDENT: Mr Schrader

SECOND RESPONDENT: Mr B

THIRD RESPONDENT:	Ms C Hadley
FOURTH RESPONDENT:	Ms D

INDEPENDENT CHILDREN’S LAWYER: Flintoff Lawyers

FILE NUMBER: (P)NCC  994 of 2013

DATE DELIVERED: 23 July 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 2, 3, 4, 5, 6 and 10 June 2014

REPRESENTATION

APPLICANT: In person

FIRST RESPONDENT: In person

SECOND RESPONDENT: In person

COUNSEL FOR THE THIRD RESPONDENT: Mr Santori

SOLICITOR FOR THE THIRD RESPONDENT: Raymond Drake

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Flintoff Lawyers

Orders

1. Ms D is joined as a party to these proceedings as the fourth respondent.

Parental responsibility

1. The first respondent and the second respondent shall have equal shared parental responsibility for the child E born … 2006 (E) in relation to:

   2.1Medical issues;

   2.2Educational issues;

   2.3Religious upbringing.

2. The second respondent and the fourth respondent shall have equal shared parental responsibility for all other aspects of parental responsibility for E not set out in Order 2 above.

3. The second respondent and the fourth respondent shall have equal shared parental responsibility for the child F born … 2007 (F).

Residence

1. E and F shall live with the second and fourth respondents.

2. The second or fourth respondents or their nominee must collect E from the first respondent’s home by 9.00 am on the first mutually convenient Saturday within 21 days after delivery of these Orders.

Time with the mother

1. E and F shall spend time with the mother as follows:

   7.1For a period of six months on a monthly basis supervised by Interrelate Family Services in accordance with Orders 8 to 13 inclusive and thereafter PROVIDED THAT the mother has complied with Order 7.1, Order 19.5 and Order 29 with clean drug screen results, progressing as follows.

   7.2On a monthly basis for a period of six hours on the fourth Sunday of each calendar month from 10.00 am to 4.00 pm with the second and/or fourth respondent to deliver the children to and collect the children from the mother at her direction, either at the Contact Centre or the home of the third respondent, if the latter is willing to facilitate that arrangement.

   7.3Overnight on four occasions per year in the home of the third respondent PROVIDED THAT the she is willing to facilitate that overnight time and further is willing to be present in her home for that overnight time.

2. The second and fourth respondents are restrained from permitting the children or either of them to stay overnight with the mother other than in accordance with Order 7.3. 

3. The mother, the first respondent and the second and fourth respondents must each:

   9.1contact Interrelate Family Services at G Town (“the Contact Centre”) within 7 days and arrange an appointment for assessment of suitability for supervision of the time E and F spend with the mother;

   9.2attend the assessment;

   9.3comply with any appointments made by the Contact Centre for supervised time;

   9.4comply with all reasonable rules of the Contact Centre;  and

   9.3comply with all reasonable requests or directions of the staff of the Contact Centre.

4. If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the mother is to spend time with E and F on a monthly basis at times nominated by the Contact Centre and such time is to occur at the Contact Centre.

5. The second or fourth respondent or their nominee must deliver E and F to and collect E and F from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

6. In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 7 then the time shall occur at the times that are offered by the Contact Centre.

7. The time E and F shall spend with the mother pursuant to Order 7 is to be supervised by the Contact Centre and the mother must pay the reasonable fees for the supervision on each occasion.

8. The mother must not attend the Contact Centre or its vicinity before the time with E and F is to start and must promptly leave the Contact Centre and the vicinity at the time with E and F is to end.

Time with first respondent (Schrader)

1. E and F shall spend time with the first respondent as agreed between him and the second respondent and fourth respondent but failing agreement as follows:

   15.1from 12.00 noon on Saturday 20 September 2014 to 12.00 noon the following Saturday;

   15.2from 12.00 noon on 27 December 2014 to 12.00 noon on 3 January    2015;

   15.3from 2015 and each year thereafter for half of each school holidays period, this period to coincide with the Queensland school holidays where possible but failing this the first week of each school holiday period; and

   15.4any other time during school terms where the first respondent notifies the second respondent within 14 days of the intended time, such time to occur in the H area.

2. To implement the time in Order 15 the first respondent or his nominee and the second or fourth respondent or their nominee must meet at an agreed place and time but failing agreement at 12.00 noon at the I House, on J Street.

Communication with mother and with first respondent (Schrader)

1. The second and fourth respondents must facilitate telephone or Skype communication for E and F with the second respondent to initiate the call as follows:

   17.1with the mother once per week at an agreed time and on an agreed day, but failing agreement on a day and time nominated by the second respondent; and

   17.2with the first respondent once per week at an agreed time and on an agreed day, but failing agreement on a day and time nominated by the second respondent.

Time with third respondent (Ms C Hadley)

1. E and F may spend time with the third respondent as agreed with the second and fourth respondents PROVIDED THAT it does not fall during the time that E and F spend with the first respondent, without the first respondent’s written consent, with the third respondent to collect E and F from the home of the second and fourth respondents at the commence of the time and to return E and F to that home at the conclusion of time.

2. Each of the respondents are restrained from bringing E and F into contact with the mother unless in accordance with these Orders.

3. Each of the parties are restrained from:

   20.1physically disciplining E and/or F;

   20.2yelling or swearing at E and/or F or in their presence;

   20.3speaking badly about a member of E and/or F’s family in the presence or hearing of E and/or F or permitting E and/or F to remain the presence or hearing of a third party who does so;

   20.4from consuming illicit substances whilst E and/or F are in their care or for the 12 hours prior to E and/or F being in their care; and

   20.5bringing E and/or F into contact with Mr K.

4. The first respondent must remain engaged with L Care Queensland for as long as deemed necessary for that service and accept any referral from that service or such similar service.

5. No longer than six months after the date of these Orders the second and/or fourth respondent shall obtain a referral for E and F to attend upon a paediatrician and a child psychologist for assessment of their specific developmental needs and to identify any issues of physical health, psychological trauma or emotional disturbance which requires treatment and/or therapeutic intervention AND FURTHER to that end, a copy of the family report of Ms M, Family Consultant may be provided to the referring general practitioner and relevant practitioners appointed.

6. The mother, the first, second and fourth respondents shall participate as required in any therapeutic intervention recommended by the relevant practitioners for E and/or F.

7. The second and fourth respondents must forthwith seek a referral to Y Family Support Services or such similar service (“the referral service”) and remain engaged with the referral service for as long as deemed necessary by that referral service.

8. The second and fourth respondents, or either of them, may provide a copy of the family report and the CAPIA prepared by the Family Consultant, Ms M, to the person providing therapy pursuant to Order 21.

9. Each party shall notify all other parties, in writing of:

   26.1any change in the members of the household of each individual party, within seven days of the change taking effect; and

   26.2any change in telephone number or residential address, within seven days of the change taking effect.

10. In the event the child expected by the first respondent and his wife has not been born before Order 6 has been complied with, the second respondent shall ensure that E (and F if considered appropriate) is delivered to the home of the first respondent after the birth of the child for a period of not less than four days to be nominated by the first respondent for dates as soon after the birth as he considers appropriate.

11. The appointment of the Independent Children’s Lawyer is extended for a period of six months during which the Independent Children’s Lawyer shall require the mother to undertake random urinalysis for illegal drug abuse on not less than two occasions.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (‘the Act’), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Hadley & Schrader and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC994 of 2013

Ms Hadley

Applicant

And

Mr Schrader

First Respondent

And

Mr B

Second Respondent

And

Ms C Hadley

Third Respondent

And

Ms D

Fourth Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These are applications for parenting orders in respect of two children, E born in 2006, now aged eight and F born in 2007, now aged six.

2. The applicant Ms Hadley (25) is the mother of both children.  She lives in GG Town with her partner Mr K (25).  He has two children from a prior relationship, N (seven) and O (five) who live in Queensland with their mother and are occasional visitors to the household.

3. The first respondent Mr Schrader (26) is the father of E.  He lives in P Town Queensland with E, his wife Ms Q Schrader (24) and her two sons from a prior relationship R (six) and S (four). They are expecting a child of their marriage in mid-July 2014.

4. The second respondent Mr B (25) is the father of F.  He lives in H Town with F, his partner Ms D (27) and their child T(six months).

5. The third respondent Ms C Hadley (48); is the maternal grandmother of both children.  She lives in U Town with her partner Mr V (57) and her daughter from a prior relationship, W (15).

6. The fourth respondent is Ms D (27).  She is the fiancée of the second respondent and the mother of their child T.  She was made a respondent to these proceedings at the conclusion of this hearing.

7. Each of the original four parties sought orders that the children live together with that party.  If there is consensus about any issue, it is that the children should be reunited and live together in one household.

History

1. In 2005 the mother and the first respondent, Mr Schrader, met and began an intimate relationship when they were respectively 16 and 17 years of age.  The mother became pregnant almost immediately and E was born in the following year.  The parents lived together for a few weeks, soon after separated and the mother moved back in to live with her mother.

2. Mr Schrader spent some periods of time with his daughter, but in May 2006 he moved to Melbourne, in order to live with his mother, Ms X.

3. In June 2006, when E was three months old, the mother began to live with the second respondent, Mr B.  Both parties were 17.  The maternal grandmother attended upon their home regularly to help care for E as in her view, the mother was not coping on her own.  Certainly the mother attempted self-harm through an overdose and was hospitalised at the Y Hospital.  The maternal grandmother alleges, and I accept, that both the mother and Mr B were using marijuana.

4. The mother became pregnant to Mr B and in 2007, F was born to that relationship.

5. By the time F was about four months old, early in 2008, the maternal grandmother was providing significant care for both her and E, who was then aged 2 years.  However they remained living in the household with the mother and Mr B.

6. In February 2009 the mother and Mr B separated.  The children remained living with their mother and arrangements were made for them both to spend alternate weekends with Mr B.  The relationship between Mr B and E was one of father and daughter.

7. In June 2009 the mother threatened Mr B with a kitchen knife and the police attended.  The mother was subsequently charged with assault occasioning actual bodily harm.  Following that incident the children moved to live with their maternal grandmother and remained living with her until March or April 2011, almost two years.

8. The mother asserts in her affidavit that her mother would not allow her to see the two girls and that:

   For two years I argued with my mother and tried to see my girls but she wouldn’t let me.  The girls were too little to talk on the phone.

9. The mother conceded that she had made no application for the return of the children; that she had stayed with her mother at Christmas time on the first occasion and that she had not attempted telephone calls with the children.

10. In August 2009 the mother was charged with malicious damage to the car of Mr B’s new girlfriend.

11. In September 2009 the mother was assessed by a psychiatrist, Dr Z, on a referral from her general practitioner, for depression, anxiety and self-harm.

12. In December 2009 the mother began a relationship with Mr K, which has continued to the date of hearing.  Thereafter there were episodic incidents involving police inquiries into drug use in that household. 

13. In February and March 2010 the police searched the mother’s premises on two separate occasions.

14. In June 2010 Mr B removed F from the maternal grandmother’s care, concerned about the standard of that care, but returned her to the home of the maternal grandparents after a few weeks.

15. On 24 June 2010 Mr Schrader commenced proceedings in relation to his daughter E in the Federal Circuit Court (formerly the Federal Magistrates Court) in Melbourne.

16. On 1 November 2010 orders were made by consent in relation to E, providing for equal shared parental responsibility between the parents, with residence with the mother and half school holidays and other times with the father.  There was no reference in these orders to the maternal grandmother being the actual primary carer for E.

17. Early in the following year, 2011, Mr Schrader moved from Melbourne to AA Town in Queensland with his mother and his aunt.

18. In May 2011 the police again searched the premises of the mother and Mr K in relation to drugs.

19. In the latter part of 2011 the mother sent E to her father in Queensland for two or three months.

20. In April 2012 there was a birthday party for E and the mother took both children home with her and refused to return them to  the maternal grandmother.  The children remained with their mother.

21. On 1 June 2012 Mr B began his relationship with his current partner, Ms D. 

22. In July 2012 Catholic Care became involved with the mother through the BB Program.

23. For the three months commencing in November 2012, Mr B became increasingly concerned about the reports both girls made to him amounting to neglect, abuse and violence in the mother’s home.

24. In January 2013 Mr Schrader began his relationship with his current wife, Ms Q Schrader. 

25. At the same time, in January 2013, Mr B retained both children in his care after an allocated weekend and did not return them to the mother.  He arranged in advance for E to be collected by Mr Schrader.

26. On 19 February 2013 the mother filed an application in the Local Court at GG Town seeking a recovery order.  Mr B filed a response seeking residence for F with him.  On that day, interim orders were made for F to remain living with her father and to spend time with the mother each weekend.

27. On 3 June 2013 Mr B filed a Notice of Risk of Abuse setting out some very serious allegations about F’s past care in the mother’s household, noting her familiarity with illicit drugs and that she had been living in very unhygienic conditions.  F had told her father that she had been hurt by both her mother and Mr K, including having food forced down her throat.

28. On 9 July 2013 all parties were seen for a Children and Parents Issues Assessment (CAPIA) with a family consultant.  E referred to corporal punishment and being sworn at by her mother and Mr K.  She reported seeing physical violence between them and described the police searching their house for drugs which her mother had hidden so the police could not find them.

29. E also referred to corporal punishment in her father’s (Mr Schrader) household by both him and his partner Ms Q.  E was distressed at being separated from her younger sister.  She volunteered that she would like to live with “Mr B” as he did not hurt her and it meant she could live with her sister.

30. In those interviews Mr B conceded that his daughter F might have a closer relationship with his partner than himself, as she had likely witnessed him being violent towards the mother in the past and would have been scared of him.  He asserted that he had addressed issues of anger and drug and alcohol abuse.  He conceded that he and the mother had drug problems when they were living together.

31. The family consultant identified multiple alleged risks for the children, while in the care of their mother, including physical abuse, neglect, risks of sexual assault, family violence and exposure to substance abuse and drug related activity.  Recommendations for future directions included ceasing of corporal punishment for the children and urinalysis testing for the parties and the mother’s partner.

32. In September 2013 the mother produced a drug screen positive for cannabis at an extremely high level.

1. On 12 September 2013 Mr Schrader filed a Response seeking residence for his daughter E with him, and also for her sister F to join her in Queensland to live.

2. A few days later he filed a Notice of Child Abuse.  The allegations related to the state of the mother’s house being dirty, with food waste throughout, drug paraphernalia in the house and physical violence directed by the mother and Mr K towards E. 

3. Mr Schrader described his daughter as “hungry and constantly asking for food.”  He also described a stage after E left her mother’s care, where she would attempt to strangle herself and say that she wanted to kill herself.  Her teeth had been neglected with many holes and she found it hard to eat without crying in pain.  E told Mr Schrader’s partner that she had been forced to eat off the floor in her mother’s home.  She described stepping on a blue needle which had caused her to scream in pain and she was then punished by Mr K for making a noise.

4. On 20 September 2013 orders were made by consent for F to continue to live with her father Mr B, and E to continue to live with her father Mr Schrader.   Orders were made for the children to communicate with each other via Skype and telephone communication and the mother was allowed to spend time with the children, so long as the time was supervised by Mr B.

5. In November 2013 the mother produced a second drug screen positive for cannabis. 

6. On 1 November 2013 the maternal grandmother was joined to the proceedings as the third respondent.  Ms C Hadley sought orders for residence for both children with her and defined time for all three parents; in the case of the mother, supervised by herself.

7. On 20 November 2013 Mr Schrader filed an Application in a Case for F to come to live with him.

8. On 22 November 2013 further interim orders were made.  The children remained with their respective fathers.

Release of Family Report

1. On 24 December 2013 the family report was released by the family consultant raising issues such as:

   ·       the impact of the separation of the siblings;

   ·       recent physical harm of E in her father’s household

   ·       E’s heightened psychological disturbance since she had lived with her father in his household;

   ·       the inability of Mr B to uphold Court orders, in particular his permitting the mother to spend unsupervised time with both children;

   ·       an incident of self-harm by Mr B; and

   ·       the alleged history of neglect in the home of the maternal grandmother.

2. The family consultant noted the attitude of the mother as “hostile.”  That was certainly how she presented in these proceedings.

3. The family consultant noted with concern that Mr Schrader was using corporal punishment on E, including with a wooden spoon, which left marks.  He conceded seeing his daughter scratching at her neck and saying she wanted to die.

4. Mr B admitted to cutting his wrists, taking a photograph of that injury and sending it to his then estranged partner, Ms D, during a brief separation for them in 2013.  Y hospital records indicate that he was diagnosed with depression in June 2013.

5. The maternal grandmother discussed with the family consultant a breach in the relationship between herself and the mother over the mother’s assertion that she had been sexually assaulted by her step-father as a young child in her mother’s household and that her mother did not believe her allegations.  It is apparent that this breach has never been fully healed.

6. The mother’s partner, Mr K, was noted to be emotional throughout the interview.  He acknowledged a criminal history primarily related to drug use, including six convictions for possession and a recent charge for cultivation of the prohibited plant.  He conceded a long history of substance abuse and current alcohol use.  There is an Apprehended Violence Order (AVO) in place for his previous girlfriend for protection from him.

7. Mr Schrader’s partner saw nothing wrong with E being required to call her ‘mum’. 

8. Mr B’s partner did not see anything wrong with the children spending time with their mother, but noted that she would not be prepared to supervise the visits due to the mother’s volatile nature.

9. Overwhelmingly that family report identified the fear and sorrow the children felt about living apart from each other.  E had been witnessed banging her head up against a wall.  She was clear to say that she did not want to live with her own father. 

10. The Queensland Department of Welfare substantiated emotional abuse to E in July 2013.

11. F seemed to be doing a little better in that she was happy to be living with her father and his partner, but sad about the loss of her sister.  She was clear to say that she would be angry if she had to live with her (maternal) grandmother.

12. On 12 February 2014 trial directions were made.  Only the maternal grandmother complied in a timely way.  The mother did not file an Amended Application, nor did she file an affidavit by herself or her partner.  Neither of the fathers filed updating affidavits until days before the final hearing. 

13. All three of the parents had had their grants of legal aid withdrawn and came to a seven day hearing self-representing.  The Independent Children’s Lawyer and the maternal grandmother were represented by counsel.

The evidence

1. The parties relied on the following documents:

   Applicant mother (Ms Hadley):

   a)Initiating Application filed by applicant mother on 19/02/2013;

   b)Affidavit of applicant mother filed 19/02/2013;

   c)Affidavit of applicant mother filed 21/11/2013;

   d)Statement of applicant mother dated 02/05/2014 filed in Court 02/06/2014.[1]

   i)[1] Exhibit 7

   First Respondent father (Mr Schrader):

   e)Response to Initiating Application filed by first respondent on 12/09/2013;

   f)First Notice of Risk filed 17/09/2013;

   g)Second Notice of Risk filed 21/11/2013;

   h)Affidavit of first respondent filed 12/09/2013;

   i)Affidavit first respondent filed 20/11/2013;

   j)Affidavit of first respondent sworn 29/05/2014;

   k)Affidavit of Ms Q (wife of first respondent) filed 12/09/2013;

   l)Affidavit of Ms Q filed 20/11/2013;

   m)Affidavit of Ms X (first respondent’s mother) filed 20/11/2013;

   n)Affidavit of Ms CC (paternal aunt) filed 21/11/2013;

   o)Affidavit of Mr DD (friend of first respondent) filed 21/11/2013;

   Second Respondent father (Mr B):

   p)Response to Initiating Application filed by second respondent on 26/03/2013;

   q)Affidavit of second respondent filed 26/03/2013;

   r)Affidavit of second respondent filed in Court 03/06/2014;

   s)Affidavit of Ms D (who became the fourth respondent) filed 26/03/2013;

   t)Affidavit of Ms D filed 29/05/2013;

   Third Respondent maternal grandmother (Ms C Hadley)

   u)Minute of Orders sought by third respondent filed with affidavit on 13/11/2013;

   v)Affidavit of third respondent filed 13/11/2013;

   w)Affidavit of third respondent filed20/03/2014;

   x)Affidavit of third respondent filed 24/04/2014;

   Family Consultant:

   y)Children’s and Parents Issues Assessment (CAPIA) dated 09/07/2013;

   z)Family Report dated 24/12/2013.

Ms Hadley, the applicant mother

1. The mother represented herself.  I was told that her grant of legal aid had been withdrawn.  Her affidavit was prepared by her former solicitor.

2. The mother is 25. She lives in GG Town with her partner of four years, Mr K.  She gave evidence that she is studying at EE College, that she is undertaking the course on-line and commits five days a week to it.  On her own evidence she has been a regular user of marijuana for many years.

3. After a relatively polite start to her evidence, the mother presented as increasingly hostile, petulant at times, indignant, and on many occasions, apparently bored.  She propped her head up in her hands, answering in tones of insolence and sarcasm, questions which were unfailingly put on a courteous and restrained basis by counsel for the Independent Children’s Lawyer. 

4. As the hearing proceeded, the mother called out to witnesses in anger on several occasions.  She was told to stop doing so, but after a time she would do it again.  I conclude that the mother is impulsive when angry and incapable of self- restraint in those moments.  She left the court room several times, on the second occasion (4 June mid-afternoon) swearing and muttering.

Care of the children

1. The mother has not had the children in her care since January 2013.  The children have variously lived with herself, the maternal grandmother and are now separated from each other living in the households of each of their fathers.

2. The mother did not at any stage appear to accept that the disruption to her daughters’ lives had been caused by her. 

3. The mother denied any justification for concerns about her parenting raised by the two fathers or her own mother.  She denied neglect or abuse of the children.

4. The mother was equally dismissive in relation to her drug use, which on her own evidence, was twice daily use of cannabis, taking her to levels hugely exceeding the cut-off point in drug testing.  She was asked where the children were when they lived in her household and she was smoking marijuana twice a day.  She said they were playing or watching television, or whatever they were doing.  She did not concede to any extent that her capacity to be a parent was impaired, or that she might be slow to react or miss something when the children were left to their own devices in this way.

5. I am not quite certain whether the mother understood her incapacity and was not prepared to admit it, or is so deeply in denial about the significance of her drug use, that she believed what she was saying.  She said she had stopped using marijuana because her previous solicitor had said it would make her case better.  When asked whether it would have been an appropriate thing to come with a clear drug screen to establish that she had indeed given up, the mother quickly became quite aggressive, angrily blaming her solicitor for not having told her what she was to do.  Her voice was loud, clear, petulant and resentful at that time.

6. The mother had no credible explanation for two years (2009/2011) having gone by without a serious attempt through courts, or negotiation, to have her two daughters returned to her care, nor for why she had made so little effort to communicate with them, if not visit them.  She was entirely dismissive of Mr B’s expressed concerns about violence and drug use in her house, asserting that he had “made it all up” because he was jealous and angry and “playing happy families”, presumably at her expense.  She was equally dismissive of the concerns of Mr Schrader about the state of her house on those occasions when he had seen E in 2011 and 2012. 

7. As her evidence went on, counsel for the Independent Children’s Lawyer on two occasions asked the mother whether the proceedings were boring her.  It was an entirely reasonable question, given her presentation.  On one occasion she responded, “No I just don’t like being picked on all the time”.

8. As allegations about the state of her house were put to the mother, such as cat faeces inside the house and under the bed, wet and soiled nappies lying around, unfinished meals on floors for days and dirty dishes covered with cockroaches,  the mother through gritted teeth, simply answered, “No, no, no” in quite a childish tone.

9. When confronted with a police record and having read it, which included a reference to minimal food in the fridge and pantry, the house in a state of squalor with clothes and toys strewn everywhere, the mother expressed the view that the police had exaggerated the position, although she did not know why, “I’m not one of them”.

10. The mother was not only defensive, she was aggressive towards counsel for the Independent Children’s Layer, “You’re big thing about me is that I don’t care for my children” and presented as if it was an imposition to continue to sit in the witness box.

11. Her evidence about the investigations by police of drug use by Mr K at home, the growing of drugs and transporting of drugs in his motor vehicle, was disingenuous and could hardly have been expected to be believed.  She disclaimed all knowledge of drugs in the house.  However I note that in relation to Mr K being pulled over when they were both in his car, cannabis being discovered in the back seat and in the air filter of the car, she conceded that she had been extremely angry with him after the event, because she had already begun this case and she thought that the incident would be unhelpful to her.  She was certainly not expressing any disapproval of the drugs themselves.

12. She was asked whether she had spoken to Mr K about the possibility of him selling drugs.  She said she had; “he didn’t” and then said this in quite a loud and definitive way:  “Has it ever been proven, no it hasn’t!”

Mental health

1. The mother conceded that her general practitioner had told her parents when she was a teenager that she had Bi-polar Disorder; she subsequently found out that such a diagnosis could only be made after tests and scans and now regards this diagnosis as suspect.  In her affidavit the mother referred to having seen a psychiatrist on account of being very upset and depressed.  She also agreed that she had entered a mental health care plan through her general practitioner in August 2009. 

2. No doubt some of the mother’s difficulties at that time were that she was not caring for her own children and had broken up with the fathers of both of those children.

3. Unfortunately there was no medical evidence on behalf of the mother, as to present or past diagnosis, nor relevant evidence about medication that she is taking.  It is particularly concerning that the mother heavily uses marijuana, as well as taking prescription drugs for depression.  She has not had medical advice about the synergy of those drugs and their potential impact on her mental health, physical health and memory.

4. The mother has also seen a psychologist, Ms FF, and visited her once a week for six months, while simultaneously consulting with her psychiatrist Dr Z.  The mother had told Dr Z that she had mood fluctuations, felt empty and bored, experienced poor self-esteem and, as Dr Z notes, “poor impulse control.”  The mother disclaimed knowledge of the meaning of those words, which I accept were not her own.

5. She was taken to an incident at GG Town Local Court when she was charged with damaging Mr B’s girlfriend’s car, by scratching an offensive word in it.  She denied having done that damage but was willing to argue over which word it was that had been scratched into the car. 

6. The mother was also taken to the incident in June 2009 where she had threatened Mr B with a knife and had been subsequently charged.  Although the children were outside in a car at the time that was happening, the mother had not been concerned about their possible exposure to this violent incident.  The mother said she did not know if those two incidents represented examples of poor impulse control and further, did not know whether she cared if they were or not.

7. In relation to the period between May 2009 and March or April 2011, when both children lived with her mother, the mother gave inconsistent answers about how much time she had spent with her children and became increasingly hostile on challenge.  Mid-morning on the second day of the hearing, the Court took a break in order for the mother to consult with a solicitor from a legal centre, as she had become almost entirely non-responsive to questions. 

F’s eyesight

1. F was apparently born with a difficulty with one eye which was turned in. Surgery was undertaken when F was between six and 12 months of age.  I accept that the mother did not know that in August 2009, F had a further operation arranged by the maternal grandmother.  The mother appeared to be too irritated and querulous to take up the opportunity to find out what had happened to her daughter between 2009 and 2011, in the surgery and follow-ups.  My impression is that she felt both angry and humiliated that those events had taken place without her knowledge.

Mr K, the mother’s partner

1. The mother gave evidence about her partner Mr K, which was barely credible; that she did not know whether he still smoked marijuana, not certain if she was still living with him, “May be”, could not say whether she had seen him using marijuana and if she had, when the last time was.  Presumably her answers were designed to protect Mr K and also herself from criticism.

Family report

1. The mother said she had probably read the family report and most likely the CAPIA as well.  I am confident the mother has read both documents, as she asserted at the commencement of the hearing and was merely expressing her irritation with the process in her answers.  When asked whether she knew what corporal punishment meant, her answer was “Nuh and I don’t care”. 

2. She was quick to assert a similar lack of interest in any other concerns the family consultant may have had.  She was quite unwilling to engage with why E would have told the family consultant that she had witnessed physical violence by Mr K on her mother, that she had seen police coming to the house and that she had seen her mother and Mr K hiding drugs.

Opinion of Mr B

1. The mother spoke positively about Mr B and Ms D.  She thought that both children would be safe, well cared for and probably happy in their care, but she was not so confident about whether they would be secure.  I conclude that the mother does have confidence in Mr B and his partner to provide a good level of care for the children.

Relationship with Maternal Grandmother

1. The mother was consistently negative about her own mother and made disparaging comments on many occasions about the care that her mother had offered and provided for both children from the time they were born.  The mother returned to live with the maternal grandmother, taking E with her, soon after she was born.   However she rejected the notion that she had been assisted by her mother:

   She was looking after the other three kids or else going off with her boyfriend.  I looked after myself and cooked for her kids too. 

2. Likewise, when she had the opportunity to occupy the house that her mother had previously lived in, the mother said that her mother had not done that for her, “The house belonged to her grandparents and they had provided it for her.”  She was unwilling to concede any particular level of care by her mother as she grew up. 

3. The mother’s family moved to Queensland when she was about 10 or 12 years of age.  The proposition was put to her that her mother had bought her a computer at that time; her tone as she said the words slowly and spaced, “No she did not”, was childish in the extreme.  She described her father having bought the computer and a mouse, to encourage her to come along to Queensland because she had wanted to stay with her grandmother in GG Town. 

4. Inconsistently with what she had said less than half an hour before, the mother then went on to describe Mr B as controlling, abusive and physically violent towards her during their relationship; that he had thrown her down the stairs and that during their years of living together from 2006 to 2009, there had been no assistance by him with the children, that he had worked from 6.00 am to 5.00 pm, came home for a shower and to eat, had gone out again with friends and had spent the whole of the weekends fishing or involved in other activities.

5. The mother gave this evidence with a tone of brooding resentment.  However the evidence is that after the separation from Mr B, within a matter of two or three months, the children went into the fulltime care of the maternal grandmother. 

6. I simply do not accept that the mother had been bearing all of the care and supervision of the children until separation and then gave the children up to her mother when Mr B left.  It is more likely that Mr B was actively involved in the care of both children and the mother was unable to cope on her own.  That is the explanation given by Mr B for his decision to remove both children from the mother’s care. I accept that soon after Mr B moved the children into the care of their maternal grandmother, for reasons relating to his own circumstances, and I accept that it was a considered decision not to return the children to the care of their mother at that time.

1. Significantly the mother proposes Mr B for the alternate residence in the event the children could not live with her.  She said her reasons for proposing that the children be in his household, were that he would not be the one doing the caring; it would be Ms D and “his nan and pop”  (Mr B’s grandparents).  The mother said this:  “I’m happy for them to have my children”.

2. The mother presented as both a sad and angry person.  When she was asked about an overdose, her response was illuminating, “No it wasn’t an overdose because it didn’t work.”  When asked whether it had been a cry for help, her answer was, “Probably, not that anyone cared”.

3. The mother concluded her evidence by denying that she had any problem with her mental health, although that is inconsistent with the evidence.  The theme of the mother’s evidence and her occasional outbursts was that nobody was listening to her, nobody was supporting her and that in a broader sense, life was treating her unfairly.

4. Whilst all of that might be true, her focus was not on either the present or future needs of her children, or the actions and decision she has made which have caused such disruption in their lives.

Mr K, partner of the applicant mother

1. Mr K is 26.  He is in fulltime work as a salesman.  He provided a handwritten statement at the commencement of the proceedings.[2]  In that statement he spoke affectionately of both children and his wish not only to support the mother in having the children returned, but his own independent wish for that to happen.

   [2]Exhibit 8

2. Mr K supports the mother in nominating Mr B’s household as the best alternative if the children cannot live with them. 

3. Mr K is a regular user of marijuana and came prepared with a biblical quote to establish the proposition that “Nowhere in the Bible does it say that you can’t spoke marijuana.”  He was clearly conscious that his criminal record in relation to drug use would be raised and would be a problem for the mother in her application to have her daughters placed back in her care.  Although he gave evidence of trying to give up drug use, his explanation for not doing so was that he had had a problem with his drug counsellor. 

4. I do not consider that Mr K wishes to give up his use of marijuana, but he may have tried to do so to support the mother in the past.  However he was clear to say that he did not believe that cannabis had any adverse effect on his health or his capacity to be a parent.  His real attitude is revealed by his response to the question:

   Q:Why haven’t you stopped marijuana use to support your girlfriend in getting her children back?

   A:       I don’t see how the use of cannabis makes everyone a bad person.

5. The police have attended the household of the mother and Mr K on several occasions; in February and March 2010, in May 2011 and September 2013 and his car was stopped and searched after the purchase of drugs which were then removed by police. 

6. Marijuana is a part of daily life for Mr K, as it is for the mother.  He appeared to genuinely reject the idea that there could be a detrimental impact on himself personally or as a parent through drug use, although he offered the information that the mother of his two children was probably the person who had alerted the police to the presence of drugs in his home.

7. He did not consider that the subject children might be excluded from the social lives of their friends at school on the basis of his reputation for at least drug use, if not as a source of drugs for others to buy.  His answer referred to friends, mates, who came around with their children and had no objection to it.  I accept that is probably the case, but he appeared to be unable to focus on the independent friendships of the two children in question with their friends at school and the likelihood that such children would not be permitted to attend the mother’s home.

8. On one occasion when the police were at his home, another person approached and asked to “buy a 20.”  Mr K agreed that that had happened but he was confident that the police had set that situation up.  He agreed that E had been present when the police searched for drugs in May 2011; he and the mother had just picked her up from school. 

9. He denied that the children might be frightened of the police being present, or that they might already understand that the police were there in relation to criminal behaviour by him.  He agreed that it was likely that police would come to the property again, as he said he had a criminal record: “every time they see me they have a look”.

10. Although he expressed himself as not happy for the children to be exposed to such events in the future, I have the impression that he was philosophical about it, whilst regarding his conduct as completely harmless.

11. In an attempt to play down what the children have seen in his home, Mr K said that E must have made up her statement to Ms D and the family consultant, that she had seen drugs growing at her home.  E was at that time living with her mother and Mr K.   When the proposition was put to Mr K that it was quite a coincidence that drugs had been grown at his home (in seven pots), Mr K agreed that that’s what it was, coincidence.

12. Mr K was also asked about statements made by E that she had been hurt, both by him and her mother.  Mr K was unconvinced that the child had made those statements and thought that perhaps Ms D had simply made them up.  E had made those reports to her father and step-mother, who reported them to the Queensland Child Safety Department, including an assertion that Mr K and their mother had forced food into their mouths until they choked.  Mr K offered the explanation that it could have been for attention, or for a few things.  He was quite dismissive about Mr Schrader’s statements that he was shocked at seeing dirty clothes and food waste in the house, illicit drugs and drug use equipment. 

13. In quite a naive way, Mr K said that neither Mr Schrader or the children could have seen drug equipment, unless they had gone to his cupboard, or the bar area at home, where the children were forbidden to go.  He agreed that he was out of the house for long hours each day at work, and that the children could readily have gone to those areas in that time.

14. I formed the impression that Mr K was doing his best to be loyal to the mother and would be content for the children to come back into the household.  It is highly unlikely that if that happened he would change his practices in relation to drug use, or discipline of the children to any extent.

Mr Schrader, the first respondent

(Father of E)

1. Mr Schrader is 26.  He represented himself.  He is in employment in a business owned and operated by his wife’s family.  He described himself as a person who suffers from anxiety.  He spoke very quickly as if under pressure and showed signs of distress at times.  His mother, Ms X, later gave evidence to the effect that she too suffers from anxiety and takes medication to alleviate the symptoms and recognises the difficulties that he son has with that condition.

2. Mr Schrader had just turned 18 when his daughter E was born.  Within weeks the relationship between himself and the mother had broken down.  Shortly after he moved to live with his mother in Melbourne, where he remained for about four and a half years.  It is apparent that he was at a loss to know what to do about seeing his daughter and accepted the mother’s restriction on him having any contact with her, at least for the first couple of years of her life.

3. There was also the fact that the mother had entered a relationship with Mr B; the two young men did not get on well.  There had been at least one violent incident between them and Mr B joined with the mother in excluding Mr Schrader from E’s life; Mr B taking the view that if he was present in the child’s life and supporting her, he should have an unrestricted role as her father.

4. After Mr Schrader became aware that E had moved to live with her maternal grandmother in mid-2009, he commenced proceedings in the Federal Circuit Court (then the Federal Magistrates Court) in Melbourne.  He named only the mother as the respondent, although the children were not living with her; probably because there was no order inconsistent with the mother having parental responsibility for E, as did he.

5. The mother and E travelled down to Melbourne for that court case, that trip being funded by Mr Schrader’s mother.

6. On 1 November 2010 orders were made granting equal shared parental responsibility to the parents, residence to the mother and time for Mr Schrader in holidays and other times.  At that time E had not yet started school.

7. Soon after in January 2011, Mr Schrader moved from Melbourne to AA Town in Queensland with his mother and aunt.  Thereafter he had contact with E for half of school holidays and approximately one weekend in every school term when he would travel to GG Town and spend time with her in the GG Town area.  The relationship between Mr Schrader and his daughter developed and deepened.

8. E spent three or four months with her father at the end of 2011 at the request of her mother, who believed at that time it was better for E to be away from her home. 

9. Mr Schrader describes himself as shocked at the state of the mother’s home when he went to collect and return E.  However again he seemed to be at a loss to know what to do to keep his daughter safe.  He said he is aware now and was unaware then, that he could have reported certain matters to both the police and the Department of Family and Community Services.  He observed dirty clothes and food waste throughout the house, illicit drugs and drug paraphernalia, the house smelt of cannabis and E increasingly told him of assaults on her by her mother and Mr K.

10. It appears that he maintained his commitment, tried to telephone her on a weekly basis and apparently hoped for improvement in the mother’s situation.

11. In January 2013, Mr Schrader met his current wife.  The relationship developed quickly and within a couple of weeks the two of them were making their way down to GG Town to collect E, in a plan that was pre-arranged by Mr B with the knowledge of Mr Schrader and the maternal grandmother.

12. Both fathers had been galvanised by the possibility of the two children being taken into the care of the Department of Family and Community Services.  It was undoubtedly a shock for E. 

13. She had spent a term at the end of 2011 with her father before he met his now wife. However Mr Schrader’s partner and her two young boys were completely new to E when she moved to live with her father in January 2013.  It began a period of separation from her sister which has been very painful for her and I am satisfied that Mr Schrader has understood that.  I accept that he considered that keeping the child safe outweighed the distress he knew she would feel as a result of that separation.

14. When she first came to live with him, E is described as having been easily frightened, shaking at loud noises and in a poor state of physical and psychological health.  Mr Schrader did not engage with the child or encourage her to confide her experiences and feelings in him.  He encouraged his wife to do so, but his own approach was to distract the child with enjoyable activities and family outings.

15. Mr Schrader’s mother, Ms X, was also a safe and reliable confidant for E:

    She ([E]) didn’t have much time to splurt out all that stuff.  She opened up to my mother more than anyone I know.  We kept her busy and with friends.

16. There were an enormous number of changes for Mr Schrader from the commencement of January 2013.  He met his future wife, he took on the commitment of being a step-father to her two young children, then aged five and three, and took on the fulltime care of his daughter.  I do not doubt his commitment to E, rather he under-estimated the impact of those changes on her.  His expectation may have been that once she was in a safe place, everything would fall into place.  Not surprisingly it didn’t and E became increasingly unhappy and was probably challenging at home.

17. Mr Schrader’s evidence suggests that he has a rather boisterous way of engaging with children, rough housing and sometimes throwing objects around.  He uses smacking as a form of discipline.  E did not cope well and raised complaints at school, which her father found confronting and perhaps shameful.  He referred to her as having told lies and exaggerated to get what she wanted.  The family came to the attention of Queensland Child Safety.  To his credit, Mr Schrader and his wife undertook a parenting program through L Care.  Unfortunately in my view, they did not seek external help for E: “I thought it would be better to leave pushing strangers at her to talk about things she’d rather forget”.

    On 8 July 2013, there was a disclosure by E that her father had grabbed her around the throat that morning.  There was quite a list of complaints in addition; that she had been punched in the face, hit on the back, yelled at and that S (the four year old younger son of Ms Q Schrader) had kicked and punched and sworn at her.

18. It does seem likely that Mr Schrader was quite stressed during 2013. E reports, “Dad gets angry and hits us and hurts mum ([Ms Q Schrader]), hurts her feelings, we have to be quite (sic).”  She also spoke of yelling and smacking by the father with his hand and a wooden spoon, which all suggest, at best, parenting capacity reduced by stress.

19. Mr Schrader denied that E was genuinely unhappy in his care, despite the fact that she had scratched her own neck with her hands and stated that she hated her father, hated living there and wanted to die.  Mr Schrader referred to this as “one big tantrum, trying to get what she wants, saying hurtful things”.

20. I consider that this was Mr Schrader defending himself and his own feelings about E, rather than the total lack of compassion that it suggests.  However he does not seem to be particularly well attuned to his daughter’s feelings.

21. In her affidavit, Mr Schrader’s mother, Ms X, said that E had told her things which she thought her son would find horrifying.  Mr Schrader himself agreed that his mother had not told him things, “In case I did something irrational.”  This is probably an acknowledgment of the fact that Mr Schrader is not yet an experienced father and has a history both of being anxious and impulsively aggressive occasionally.  At times he may have blamed his own daughter for his own difficulties:

    Probably she’s not happy living with anyone unless she get things.  She’s spoilt, she wants things, she’s a little kid.

22. There is no doubt Mr Schrader wants to make it work for his daughter and is willing  to have F so that the children are not separated, but it is my view that he is simply being unrealistic about how easily a family consisting of himself, his wife, her two boys and the two girls could function. 

23. The final significant factor is that Mr Schrader and his wife are expecting a child in July 2014, with some indication during the hearing that that child would be born prematurely.  Even with family support it is hard to see how the needs of E and F could be fully met by Mr Schrader and his wife under those circumstances.

24. However, Mr Schrader has a very strong commitment to keeping his daughter safe and is concerned about the GG Town area in relation to drug use and violence.  He strongly disapproves of the breach of Court orders by Mr B when he allowed the children to stay with their mother overnight, soon after a restraining order was made.  He also acknowledged the protective factor of the maternal grandmother caring for both children between June 2009 and April 2011 and in the event that the children were not to be placed with him, his preference was for them to be placed with the maternal grandmother.

25. He has a lot to offer both children, but particularly his daughter and although he has not always acted decisively to ensure her safety, he did do so in January 2013 and I am satisfied would do so in the future.

Ms Q Schrader, wife of first respondent

1. Ms Q Schrader is 24.  She has two sons from her previous marriage; R born in 2007 and S born in 2009.  She is on good terms with her previous partner and they have come to an arrangement for the boys to see their father almost every weekend.

2. Ms Q Schrader is a strong character and clearly a family minded person.  Within a couple of weeks of starting her relationship with Mr Schrader, she agreed to go with him down to New South Wales to collect E, to bring her back to become a permanent member of the household, at least until Court proceedings were finalised.

3. I accept her evidence that they talked about the separation of the children and although they did not like the idea, they wanted to keep them safe and were committed to working out a way for the children to see each other and stay in contact.

4. Ms Q Schrader was somewhat defensive about herself and her husband.  She referred to the Queensland Department of Child Services becoming involved with the family because of “lies” told by E. 

5. Ms Q Schrader has suffered from anxiety and depression and is not presently suffering from the latter condition.  She has responsibilities both for her own two boys and E. She works part-time as a hairdresser, works in the family business as required and she runs the household.  I accept her commitment to her husband and his daughter and also to F for E’s sake.

6. E calls Ms Q Schrader “mum” and that came about by E asking if she could.  Ms Q Schrader kindly said, “Yes of course.”  However all parties seem to recognise that E in particular is a child who says what it takes to make people feel happy and it might have been preferable to explain to the child that she had one mother and that although she could use the word mum, that Ms Q Schrader was not taking that role over entirely.

7. The need to engage with a child psychologist does not seem to have been a pressing consideration for Ms Q Schrader, either because she was fully committed to other needs for all of the children, or because she genuinely accepted E’s statement that she did not like the counsellor at L Care and did not want to see her.  It certainly would have been more appropriate to talk to the counsellor about the child’s statements and to continue with her if at all possible. 

8. She gave evidence that at times of stress and anxiety she withdraws into her room so that the children do not have to see her emotional state.  Notably Ms Q Schrader did not agree with her husband that the best alternate residence for the children was with their maternal grandmother.  She considers the mother as a risk to the health and safety of the children and is concerned that since it was the maternal grandmother who raised the mother, the children would be at risk of developing similar problems.  She conceded that if there was evidence of other adult children with very different and more positive lives, she would be less concerned.

9. Ms Q Schrader impressed as somebody with a lot to offer these children, strong connection and commitment to family, predictable and a creator of routines.  She has an upbeat attitude to life and would ensure the children’s safety.  Given her history of mental illness with depression and anxiety, however appropriately addressed and treated, five children to manage between eight and  newborn, would in my view put both her and her husband under a level of pressure inconsistent with E’s and F’s bests interests.

Ms X, paternal grandmother of E

1. Ms X is 51. She lives with her husband, Mr X, in AA Town, about 15 minutes away from where her son and his family live.  Ms X was initially very stressed in the witness box, tearful and referred to her own suffering with anxiety and occasional panic attacks.  

2. In the past she took a stand with the mother about the need for Mr Schrader to have the opportunity to develop a relationship with E.  She also spoke to Mr B about the need for him to stay in E’s life, despite separating from her mother, because he had “been her father for two years”. 

1. I conclude that she is concerned about the level of obligation that her son and his wife have, especially as Ms Q Schrader is pregnant and is a type one diabetic, suffering from anxiety.  She advised her son to change his mind about pressing for both children to live with him and to concentrate on fighting for his own daughter E.

2. Ms X spoke very affectionately of the mother, “I love [Ms Hadley] like my own child because she’s never had any help with things.”  My impression of her evidence is that she feels that the mother is incapable of pulling her life together for her own benefit and that of her children and that that has been the deficiency in her parenting growing up.

3. Ms X reiterated what Mr Schrader had said that E would tell anyone what they wanted to hear.  E has told Ms X that she is sorry about the drugs she saw in her mother’s home, but that her mother and Mr K were bad to her and that she and F had hidden under the bed when the police came to the house and when “someone with a knife was trying to get into the house”.

4. I consider that Ms X will always maintain a relationship with her grand-daughter, E, and would put aside her own feelings to ensure that that could happen, whoever she is living with.

Ms CC

1. Ms CC is the sister of Mr Schrader and the paternal aunt of E.  She is employed with for a charitable organisation.

2. She gives very specific evidence that on Thursday, 26 September 2013 the children spent the night with their mother and that F had said to her:

   We were there with [Ms Hadley], Mr and Princess (the dog), that E had only had a boiled egg for dinner and that she had had nothing as she did not like boiled eggs. 

   F had confided in Ms CC:

   That mum does drugs out of a bottle and I heard her doing it in the kitchen when she was there as she always coughs when she smokes out of a bottle.

3. Ms CC was concerned to note that E appeared to be very reserved and not her usual self when she spoke to them not long after this event.

4. She was not required for cross-examination. 

Ms DD

1. Ms DD is a friend of Mr Schrader and his wife.  She provided an affidavit and was not required for cross-examination.  She has known both children all their lives.  They call her Auntie DD.  She is likely to be a person with whom both children would enjoy a relationship as they grow up, especially E.

Mr B, second respondent

(Father of F)

1. Mr B is 25.  He is a carpenter and works within a family business, having been apprenticed by his father and uncle.  His current relationship with Ms D commenced in June 2012, broke down in mid-2013 and resumed within a fairly short period. They have a six month old son.

2. Mr B had a previous relationship with a Ms HH, who had two children.  For a short period of time E and F lived with both Mr B and Ms HH.

3. During the course of his almost three year relationship with the mother, he conceded that there was abusive conduct, each to the other, both mental and physical.  There were significant arguments.  Mr B regarded the mother as lazy, a poor house-keeper and insufficiently engaged with the children.

4. He readily agreed that both children probably heard verbal arguments and could have been impacted mentally and psychologically and could have become frightened for themselves and their mother.  There was a physical fight where the mother punched Mr B in the face and he reciprocated in kind.  Looking back on that, Mr B said he was disgusted and appalled by his own conduct.  That is probably the case. 

5. However an unusual characteristic of Mr B is that he is an unusually honest and candid person, not only in these proceedings, but on the evidence before me in a general sense.  He readily concedes the factual truth of matters, no matter how much against his own interests it is to do so.  One of the troubling aspects of this case is whether that fluent candour is a technique that Mr B relies on to absolve himself from the consequences of poor conduct, or is a genuine, spontaneous aspect of his personality.

6. At one point, counsel for the Independent Children’s Lawyer, during the course of cross-examination of Mr B in relation to a serious physical argument between himself and his former partner Ms HH, said to him: 

   Q:       You have to do better than doing things and admitting it.

   A:       Yes

7. This exchange captures the flavour of Mr B’s evidence.  He has been violent in more than one intimate relationship and unfaithful in more than one intimate relationship.  It is hard to know whether his behaviour will continue unchanged, with an ongoing pattern of acknowledging wrong-doing but not changing the behaviour. 

8. As recently as last year, Mr B cut one of his wrists, took photographs of his bloodied arm and emailed them to his estranged partner, Ms D, and to the mother.  He denies suicidal intent and accordingly this most likely represents quite an immature play for attention.  It is a concerning aspect of Mr B’s approach to life.  However, I accept his evidence that since the end of his relationship with the mother in mid-2009, Mr B has spoken to both children and apologised to them for fighting with their mother.  Both of them report to the family consultant and others, that they feel safe in his care.

9. My impression is that Mr B was not only aggressive when drinking, but quite arrogant in his approach as a younger man and felt justified in physical and verbal attacks on others, including girlfriends. 

10. He says about himself that at 26 years of age, he is now grown up and put his priorities in order, where they should be.  “Back then I was selfish.  My priorities are right now; my daughter, my son and also E”.

11. It was another example of disarming honesty and reflection by Mr B. However after September 2013, Mr B restricted telephone contact between F and E due to his anger towards Mr Schrader for having taken E home abruptly during the school holidays.  It is my view that the maturing process still has some way to go for Mr B.

12. Despite my reservations about his maturity, I do accept that Mr B regards E as if she were his own daughter and that bond and commitment is some balancing evidence of maturity.  Having taken on the role of being E’s father when she was three months old, he has not stepped back from it, whilst properly acknowledging the important role of her biological father, Mr Schrader.

13. In January 2013, or the period leading up to it, Mr B and his partner came to a decision to remove both the children from their mother’s care.  It was a carefully thought out plan, where Ms D would go into the mother’s home to collect the children for holiday time.  This was to address the fact that if Mr B and Mr K were together in the same house, there would likely be “arguments, swearing and yelling”.  Although that does not speak well of either of the adult men, it was a pragmatic assessment of the best way to go about things.

14. The children were then placed with their maternal grandmother and subsequently removed by each father into his permanent care.  The maternal grandmother was aware of the plan in advance and cooperated with it.  What I draw from that situation is that although each of those three parties; the maternal grandmother and the two fathers had their differences with each other occasionally, they were united in their concern that the children were not safe or well cared for in the mother’s household and that it was up to them to protect the children.  It was those actions that prompted the commencement of this litigation.

15. On 19 February 2013, the mother filed an Initiating Application in the Local Court at GG Town for a recovery.  Soon after, those proceedings were transferred to this Court.

16. On 26 March 2013, before the transfer, consent orders were made in the GG Town Local Court that F live with her father and spend time with her mother each week from after school on Thursday until Saturday at 5.00 pm and at other agreed times.  Those orders were substantially complied with.

17. In September 2013 Mr Schrader filed his Response and on 20 September 2013 interim orders were made confirming each child living with their respective father and with provision for the mother to have contact supervised by Mr B. 

18. In particular circumstances set out in Mr B’s affidavit, where fires were preventing him from returning to his home and the children were facing the prospect of spending the night in the car, they asked to be able to spend time with their mother and he agreed.  Mr B allowed unsupervised time between the children and their mother overnight.  Ms D disagreed with his decision, but acknowledged that it was his to make. 

19. Subsequently, after E had gone back to Queensland, Mr B probably continued to permit occasions where F spent the night with her mother.  Mr B simply disregarded the orders and relied on his own judgment; something he now regrets, having read all of the material produced in response to subpoena touching on the children’s lives in the mother’s home.  He does not readily accept any situation where he is compelled to do something that does not accord with his own personal opinion.

20. It raises some concern about Mr B’s commitment to complying with Court orders, but I take into account his compliance with earlier orders, particularly as they provided for much more generous and unsupervised time between the children and their mother.

21. In November 2013 the orders changed again, providing for supervised time between the children and their mother at a contact centre.  After those orders were made Mr B made no particular effort to ensure that that took place, although it has to be said that the mother did not follow the matter up either.  Mr B made one call to the contact centre.  The mother did not communicate with him by telephone or text and nothing more was done.  The consequence is that for six months the children have not seen their mother at all.  It is highly likely that this was a contributing factor to F confiding in Ms D that she believed her mother did not love her.  Both Mr B and the mother have a great deal to answer for in this outcome for F.

22. Both children have been disrupted in their attachments and residence so profoundly that it would be hard to see how they could recover if it happens again.  Mr B’s actions in September 2013 in restricting phone calls and from November 2013 in not actively ensuring supervised time at a contact centre for the children, both cast doubt on his maturity and child focus.

23. Again as a balancing factor, his evidence is that he and Ms D are intending to buy a block of land at H Town and build a house on it, with four bedrooms, to accommodate both children and that he has the financial support by way of guarantee from his father in that plan.  Mr B has also sold his boat, which was a means of working as a sponsored fisherman, with a view to releasing more time to spend with his family.

24. Mr B has the strong support of his mother and grandparents, who play an important role in the life of both children and who have been attentive to the children’s needs, particularly in relation to medical attention for F’s eyes.

25. On the initiative of the Independent Children’s Lawyer, Mr B’s mother came to Court and gave evidence as a witness for the Independent Children’s Lawyer.

Relationship with maternal grandmother

1. Mr B has an ambivalent relationship with the children’s maternal grandmother, Ms C Hadley.

2. On at least two occasions, he made serious statements about her motivation and conduct.  His evidence is that in April 2013 Ms C Hadley asked him to tell Centrelink that the children were still with her.  He was adamant that that request had been made, although there was no corroborative evidence.

3. In another incident in cross-examination of the maternal grandmother by himself, Mr B challenged her on a topic irrelevant to these proceedings that related to events in her earlier life with the mother and the mother’s three siblings.  It appeared to be an attack on the maternal grandmother’s treatment of the mother and was probably done for the mother’s benefit.

4. On the other hand, Mr B has relied on the maternal grandmother to care for F over many years.  During the course of the relationship between himself and the mother, (mid-2006 to mid-2009), Ms C Hadley regularly looked after both children when Mr B and the mother went out on Friday and Saturday nights.  Post-separation, Mr B again relied on the maternal grandmother, who took the children into her care for a period of almost two years, during which he regularly saw the children.  Subsequently he took the children into his care briefly and for different reasons, returned them into the care of Ms C Hadley.

5. In January 2013, when the plan was conceived for each party to take responsibility for their own daughter, Mr B relied on Ms C Hadley to care for the children in her home for that to happen.  It is a pattern of conduct by Ms C Hadley entirely inconsistent with being solely or even substantially motivated by financial support.  Indeed, there is no evidence that she received any financial support, either from any of the parents or from the Government.  On balance it seems likely that it is further evidence of immaturity by Mr B and of course the mother and Mr Schrader to some extent, that they are critical of Ms C Hadley, although content for her to have provided substantial care for the children throughout their lives.

Ms D, partner of Mr B

1. Ms D is 27.  After a short breakdown in their relationship in 2013, Ms D is now again engaged to Mr B, with an intention to marry towards the end of 2015.  She is a Sales Representative, although presently on 12 month’s maternity leave after the birth of T, the child of the relationship between herself and Mr B.  T is now six months old.

2. Ms D impressed as a capable, forthright person, with good self-esteem.  I accept that she has come to love F and E and is motivated to protect them, keep them safe and provide a happy life for them.  Her presentation and evidence were both impressive.

3. The proposed Minute of Order sought by the Independent Children’s Lawyer included an order that Ms D be joined as a party so as to enable an order for parental responsibility to be made to include her, in relation to F.  She is certainly a protective person and thoughtful about the children’s relationships with extended family and their emotional needs.  Both children appear to have confided in her. 

4. When she personally observed a marijuana plant in the yard of the mother’s home, she called both police and the Department of Family and Community Services.  She did so having discussed all that she had observed in the mother’s home and whatever she had been told by the children with Mr B, before the step was taken.  When the plan was put together to remove the children from the mother’s care to avoid the possibility of them being taken into foster care, she and Mr B discussed the matter with his parents, grandparents and the maternal grandmother.  She also rang the Department.  I suspect that she was instrumental in arranging for them to stay with their maternal grandmother.  She said this: 

   We wanted them to be out of town in a safe location and not with us if anything (violence) went down.

5. Ms D was forthright about the breakdown in the relationship in mid-2013 and its resumption in early August 2013.  Ms D had continued to see F during that period of separation, which is a significant sign of her commitment to the child.

6. When Ms D was describing her opposition to allowing the children to spend the night with their mother against Court orders, she said:

   I did not agree at the time; that he now knew that he had made a mistake having read the subpoenaed material.  I would never go against Court orders. 

   I accept that evidence.

7. Ms D described the scene when she was talking to F about her mother and F raised, as she had before, her concern that her mother hated her.  Ms D said this to her: 

   Mummy doesn’t hate you, she loves you; she’s making so silly choices right now so you can’t be with her, but in future you will see her.

8. She went on to describe F being unwilling to send her mother a card for Mother’s Day because “mummy doesn’t love me.”  She gave F money for the Mother’s Day stall at school to buy a gift, both for her own mother and for Ms D. F bought nothing for either of them and did not want to.  I consider that Ms D is sensitive to F’s emotional needs and no doubt E when she is with them and would not in any way, undermine the relationship between either of the children with their mother.

9. To the extent that Mr B had restricted telephone contact between F and E after September 2013, Ms D said:

   [Mr B] had never told me that but if he had, I would have described it as ridiculous [conduct].

10. When asked questions by the mother, Ms D revealed the extent of her protective approach.  The proposition was put to her that not everything the children said was true and that during the course of this hearing they had proven to be “liars.”  Ms D said that for their safety she acted on the basis that they were telling the truth, even if she doubted it herself.  It is a safe and child focused approach. 

11. Ms D was genuinely shocked when the mother put the proposition that the children had been smacked with coat hangers in the home of Mr B and herself.  She strongly responded that her method of discipline was consequence and choices, as that had been the way she was raised and “under no circumstances would I be a smacking parent and I won’t condone it in my home”.

12. I accept that Ms D has not and would not use corporal punishment on the children and would not permit others to do so.

13. In exactly the same way when she was asked by Mr Schrader whether she had told E to grab stuff from the bar (a reference to drug equipment in the mother’s household in the bar area owned by Mr K), she said this:

    I would never encourage or allow a child to touch a prohibited substance.  Never.  I’m adamant about that.

14. Again, I accept her evidence.

Ms C Hadley, third respondent

(Maternal grandmother of both children)

1. Ms C Hadley is 48 years old.  She lives with her partner of approximately nine years, Mr V, in an area outside of GG Town.  Ms C Hadley was joined to the proceedings in November 2013, after an application by the mother asking that her mother be joined.

2. The mother is the child of Ms C Hadley’s first relationship to a Mr JJ.  During the course of her oral evidence, Ms C Hadley revealed that that relationship had been outstandingly violent, with reference to guns and repeated sexual assaults on her by her husband. It seems likely that Ms C Hadley continues to be adversely affected by events in that first relationship.

3. Thereafter, Ms C Hadley married her second husband and there are three children of that relationship, one of whom, W aged 15 years, is still living with her.  Mr II is her third partner and they have been living together for about nine years.

4. Ms C Hadley apparently felt both helpless and conflicted over what to do in relation to her two grand-daughters.  I accept that she provided as much care and assistance as she could; first of all when E was born to the mother, then 17 years of age.  She took the mother and baby back into her home after the relationship between the mother and Mr Schrader broke down soon after E’s birth.  She regularly cared for both E and then F during the course of the relationship between the mother and Mr B.  She did so willingly, despite considerable criticism, defiance and outright rudeness from the mother.

5. In June 2009, when that relationship broke down, Mr B removed the children into his care and then quite quickly transferred their care to Ms C Hadley.  Again, willingly, she provided care for the children for almost two years, until April 2011.

6. Ms C Hadley presented as someone with an extremely poor memory, especially to dates, but her commitment to her grandchildren and to her daughter was on display. 

7. After the children were taken back by her daughter into her own care in April 2011, she again visited them, telephoned them and looked after them, despite rude and insulting treatment, both from her daughter and Mr K. 

1. Both children greeted Mr K and E offered him a hug, which he reciprocated.

2. When observed with Mr B and Ms D, the adults were observed to be warm and encouraging of the children and “all interactions between both children and both adults appeared mutually familiar and comfortable”[5]. 

   [5]Family Report dated 24/12/2013, par 136

3. When observed with Mr Schrader and his wife, Ms M’s observation is that the children were not initially relaxed, although became so.  E referred to Ms Q Schrader as “mum” which confused her sister. 

4. E expressed excitement at the prospect of seeing the maternal grandmother; F is not reported as having reacted.

5. I draw from this history of the children and their observations by Ms M that the children do have their most important relationship with each other.  Both of them have a meaningful relationship with their mother.  Both of them have a meaningful relationship with Mr B and Ms D.  E has a meaningful relationship with her father and probably now with her step-mother, Ms Q Schrader, but F does not have such a relationship with the Schraders.  Both of the children probably have a meaningful relationship with the maternal grandmother, E more so, but F is wary of living with her grandmother.

6. There is a benefit to both children from maintaining those meaningful relationships.   

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse or family violence

1. Both girls have been exposed to abuse, neglect and family violence.

2. In their mother’s care, the basic needs of the children were not regularly met.  They were left unfed, unbathed and unsupervised on many occasions.  It was the observation of many different witnesses in these proceedings that the mother’s home was unclean and that insufficient attention was paid to the children’s health and wellbeing.  They were left unsupervised.  Both children have been present and hidden when police arrived to search the house for drugs.  Both children are aware of drug equipment in their house and know approximately what it is for. 

3. Both children were exposed to family violence in the relationship between their mother and Mr B and between their mother and Mr K.  E in particular has almost certainly experienced corporal punishment, or at least a rough reaction from Mr K.

4. Section 60CC(2)(a) requires the Court to give greater weight to the consideration of protection of children from harm.  In this matter the children do need protection from harm, such that the continuation of their relationship with their mother must be done in a way that does not bring them into contact with Mr K and allows them to spend safe and secure time with their mother.

Additional considerations

1. The additional considerations are set out in s 60CC(3) of the Act. These are:

Section 60CC(3)(a) – any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

1. Both girls have expressed strong views that they want to be together with each other and all relevant adults support that happening.

2. The children are aged eight and six.  Neither of them has had the experience of being consistently raised by the same parent and other than knowing that they want to be with each other, I cannot take their views into account, given the disruption to their lives that they have experienced in all households.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the children) 

1. Both E and F have a close, loving and affectionate relationship with Mr B and Ms D.  They feel safe with both of them.

2. E has increasingly developed a relationship with her father, although she has struggled with her separation from her sister and the circumstances of her father’s home in Queensland, where there are two younger step-brothers, one of whom can be quite aggressive; although I accept that E has learned how to handle S and even to be a beneficial influence on him.

3. F does not have any particular significant relationship with Mr Schrader and his family.

4. Fortunately the children have important relationships with grandparents; their maternal grandmother and her family.  E’s paternal grandmother is very important to her and she has an easy confiding relationship.  F’s grandmother, Ms B Snr, and her great-grandparents are also important people in the lives of both girls and are part of many enjoyable family activities.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues, to spend time with the child; and to communicate with the child

1. The three parents were all very young teenagers when these two children were born.  The mother made a decision to exclude Mr Schrader from E’s life within a brief period of weeks after E’s birth and the father was at a loss to know how to be involved in his daughter’s life.  He chose to live with his mother in Melbourne as a way of coping and missed the opportunity to spend very much time with his daughter in the early years of her life.

2. Mr B at first excluded Mr Schrader but took the decision to ensure that Mr Schrader became involved in E’s life when he separated from the mother, when E was just over three years of age.  Since then, Mr Schrader has been interested in his daughter’s development and welfare and in late 2011, took on her fulltime care for a period of time at the mother’s request.

3. Mr B has consistently treated both E and F as his own daughters and there is no evidence at all to suggest that he has treated them differently.  He has made decisions about their care, including decisions to return them to the care of their maternal grandmother after they had come to stay with him, when circumstances dictated that that would be more appropriate.

4. Mr B maintained contact with his own daughter on a regular basis after separation from the mother in mid-2009.  F has lived with him since January 2013 on a fulltime basis and has apparently thrived, especially with the support and input of Ms D.

5. Mr Schrader made efforts to communicate on behalf of E with F and was somewhat thwarted in this by Mr B after September 2013, when there was a falling out between the fathers over a breach of the orders by Mr B.  This is a reflection of an immature response by Mr B and it is reassuring that had Ms D known what Mr B was thinking and doing, she would have been vigorously opposed to any such restriction.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. During the time the children were in the care of their maternal grandmother, she provided for them financially.  She was quite unreasonably criticised for contemplating getting financial assistance from Centrelink; although ultimately she did not. There is no evidence of any of the three parents providing financial support for their child in the care of the maternal grandmother.

2. Since January 2013, Mr Schrader has been responsible for maintaining E and Mr B has been responsible for maintaining F.  Both of them have had extended family support.  The mother is not working and has not paid any financial support for the children in the care of their fathers.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances including any separation from either of their parents, or any other child or other person with whom the child has been living

1. E and F have both suffered from being separated from each other.  A change of circumstances where they are together is likely to have a positive effect on both of them.  There will be disruption for E who has now spent almost 18 months in her father’s household and has begun to settle at school and make friends. 

2. However, she has had her difficulties and has raised complaints about her difficulties at school, such that the Queensland Department of Child Safety has become involved in the life of the Schrader family.  She has not been particularly assisted with psychological support, which has not been given priority by her father and step-mother.

3. A move for E to live with her sister in the home of Mr B and Ms D is likely to bring a greater sense of safety and happiness.  However E will need to maintain relationships with her father, step-mother, step-brothers and her new sister due to be born in 2014; also with her paternal grandmother to whom she is particularly close.

4. It is likely that E will have a sense of restoration in the care of Mr B, having known him as her father for the first three years of her life and having been treated as his daughter thereafter.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent

1. There will be some cost for E in maintaining relationships with her paternal family.  There will be travel from the GG Town area to South-East Queensland on a regular basis.

2. Both fathers are in fulltime employment and I am satisfied will make proper arrangements for the children to travel by car or by plane in accordance with the Orders. 

3. It is likely that the mother will not have the financial capacity to contribute to travel for the children for some time. She would be reluctant to do so voluntarily given her anger and resentment about the children being out of her care. Applications for Child Support could be made if the mother does take up paid employment.

4. There would be some costs associated with the mother spending time with the children on a supervised basis.  I am satisfied that Mr B would contribute to part of those costs by travel and the mother would have the capacity to make a contribution to the costs of a contact centre.

Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The mother has an impaired capacity to meet the needs of the children.  She struggles with her mental health and with significant events from her childhood.  She was born of a relationship between her mother and her father Mr JJ, who on the evidence of Ms C Hadley, was a particularly violent man who brought guns into the house and who repeatedly sexually assaulted her.  That relationship ended when the mother was about two years of age.  She then became part of a household between her mother and her mother’s second husband Mr Hadley, the father of her siblings.

2. The mother advised Ms M that she was sexually assaulted by Mr Hadley and left the home on that basis, living in refuges until she fell pregnant with E.  There is clearly a big issue still for the mother about those events.  There is conflicting evidence on whether or not the mother withdrew her allegations about her step-father. Her step-father died, probably by suicide in 2004, which has been a significant adverse event for the mother.

3. The mother is angry and bitter about her childhood, which is reflected in the hostile, uncooperative attitude between herself and her mother.  Throughout these proceedings she was focused on herself and legitimate grievances that she has arising from the past, but did not seem to have any insight into the impact of herself on her children; that her impulsive anger and violence at times, her choice of violent partners and her excessive use of marijuana, have all impacted badly on her children.

4. For a time she saw a psychiatrist and a psychologist but not for long enough to get the consistent psychological support and ongoing psychiatric management that was recommended by Dr Z in 2009. 

5. I do not consider that the mother has the capacity to meet the children’s basic day to day needs; or their emotional needs as they grow up, particularly the significance of their relationships with other important family members.

6. Mr Schrader is developing the capacity to meet the needs of his daughter E.  He has failed to understand that her psychological and emotional needs are just as pressing as her physical needs and her need for enjoyable activity.  He did not have the experience of learning to be a parent as E grew up and she was introduced to his fulltime care in the context of a new relationship with a step-mother, who had children of her own.

7. Mr Schrader is strongly committed to his daughter and his actions in taking E into his fulltime care in January 2013 prevented E being taken into foster care in the community. 

8. Mr Schrader has the capacity to suppress his own disappointment at not having E with him growing up and to ensure that she spends holiday time and communicates with him and her grandmother on a regular basis.

9. Mr B has the capacity to be a warm and protective parent; however his judgment has at times been faulty.  He has put his sympathy for the mother ahead of the need to keep the children safe on at least one occasion. He has behaved in quite an immature and needy way in relation to both the mother and his partner, Ms D.  He has struggled with the commitment that F and E require in himself and Ms D, putting personal gratification ahead of that relationship.

10. However he has shown commitment to both girls since he first entered a relationship with E’s mother.  He has treated them both as his daughters.  He has modified his lifestyle to be more available for family time and he has taken seriously the need to provide financial support for them and his five month old son born of his relationship with Ms D.

11. I have some reservations about the father’s capacity to understand the emotional needs of the children.  His anger with Mr Schrader after the early return of E in September 2013 led to a poor outcome for the girls in their ability to communicate with each other. 

12. However I take into account his age, his mother’s evidence of developing maturity and his willingness to work, at least to a reasonable extent, with the other relevant adults in the children’s life.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. E is eight; F is six.  They have had severely disrupted lives, despite being well loved children by their respective parents and grandparents. 

2. E was observed by Ms M to be a sensitive and vigilant child, feeling sad and angry with living away from her sister and worrying about her.

3. F was observed to be an emotionally aloof, yet talkative child,[6] worried about her sister living in Queensland; “She keeps banging her head on the wall and cries.”  She explained to Ms M that she knew E did that because of how upset she felt. 

   [6]Family Report dated 24/12/2013, par 125

4. When observed together the children were described as polite and compliant children and there was this:

   The close affection that they have for one another was remarkable and evident to the Family Consultant and other staff who observed the children throughout the family report process.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The mother’s attitude has been one of entitlement.  She excluded Mr Schrader because she was angry post-separation.  She removed the children from her mother’s care after nearly two years without discussion in April 2011 and brought them into her relationship with Mr K, with no consideration of how that lifestyle, which included growing marijuana and using marijuana, would affect them.  She made no particular effort to ensure that she saw the children at a contact centre over the past six months, almost certainly due to her resentment at that restricted contact.  She has not been able to put her children first.

2. Mr Schrader has always wanted to be an active father, but in E’s early years could not find a way to do that.  He stepped up to responsibility for his daughter in 2011 and even more so at the beginning of 2013, when he bought her into his fulltime care.  In that he was very much assisted by his new wife who despite having only recently met Mr Schrader, took on the care of E with genuine commitment.

3. Mr B has always shown an interest in his daughter F and has felt responsibility and love for E, not just because she is his child’s sister, but because he has regarded her as a daughter.

4. Ms D has revealed a commitment and understanding of the children’s needs, which has greatly contributed to their positive feeling about living in that household.

Section 60CC(3)(j) –  any family violence involving the child or a member of the child's family

1. There has been family violence between the mother and Mr B and the mother and Mr K.  The children have been exposed to it and have commented on it to the adults in their lives.

2. E has experienced corporal punishment in the Schrader household, which was certainly not extremely harsh, but she is a child sensitised to violence and found it difficult to cope.

Section 60CC(3)(k) –  any family violence order that applies to the child or a member of the child's family, if the order is a final order or the making of the order was contested by a person

1. There was an Apprehended Violence Order made for the protection of Mr B against the mother arising out of an assault charge against her.

2. There was a protective order made for the mother against Mr B.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The mother came to these proceedings, having returned two positive tests in 2013 for cannabis use, asserting that she stopped using marijuana in September 2013 on the advice of her solicitor, but with no corroborative evidence of having ceased use of marijuana.

2. The mother under-estimates the significance of her use of that drug, not only for the impact on her own physical and mental health, but because of the criminality, it attracts trouble to her household, which has regularly been visited by police in pursuit of Mr K.

3. The mother certainly did not give evidence that she would be prepared to give up her relationship with Mr K, who is personally committed to the use of marijuana and has likewise not considered the impact of marijuana on his health or capacity to care for children.  Neither the mother nor Mr K have had any medical advice on the impact of the drug on them and in the case of the mother, the synergy of marijuana with prescribed medication for depression which she has taken in the past and may need to take again.

4. On that basis orders need to be made which reflect the current circumstances of the mother and not on the basis of any proposed change.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. The Independent Children’s Lawyer proposed a Minute of Order which included provision for Mr B’s partner Ms D, to be joined as a party to the proceedings and to share in parental responsibility to differential degrees for F and E.  In my view that is an entirely appropriate course.

2. My assessment of Ms D is that she is a protective force for the children, is strongly opposed to, and would not tolerate, corporal punishment in her household, even if it were to be proposed by Mr B.  I am satisfied that she has formed a genuine and loving relationship with both the children and regards them as an integral part of her relationship with Mr B.  She gave serious consideration to the disruption of her relationship with Mr B for personal reasons between them in 2013, protected F from her feelings and ensured that she continued to see her during that period.

3. Given the evidence and the possibility of that relationship not being sustained, it would be important for both Mr B and Ms D to be legally responsible for the children.

Parental responsibility

1. There is a presumption of equal shared parental responsibility between the parents of children unless rebutted. 

1. In this case I have found that the mother does not have the capacity to meet the children’s needs and has not made herself responsible for the care and supervision of the children with the sacrifices that may have been required for her in terms of drug use and lifestyle. She has a reasonably good relationship with Mr B, less good with Mr Schrader, but the presumption which requires all the cooperation, consideration and consultation about long term issues for children, is rebutted by matters of capacity and the present circumstances of the mother.

2. Having considered all of the aspects of this evidence, I consider that the children are able to be reunited with each other in the care of Mr B and Ms D, who will make the day to day decisions about the children.  However Mr Schrader has the capacity and the commitment to be involved in the parental decisions of parenthood about his daughter and accordingly it would be appropriate for Mr B and Mr Schrader to share parental responsibility in relation to long term issues and that Ms D play an equal role with Mr B in decision making for F and a secondary role in decision making for E to the two fathers.

3. Accordingly orders have been made for the children to live with Mr B and Ms D, to spend substantial and significant time with Mr Schrader and to otherwise spend time and communicate with significant adults in their lives as agreed between the responsible adults.

4. In relation to the mother, provision has been made for her to spend supervised time in a contact centre with the children during the period when they settle in together with the new arrangements. 

5. Thereafter, supervised time will give way to unsupervised time on certain conditions, namely that the mother to undergo drug screens with a clear result, that the children are not brought into contact with Mr K and that they do not spend overnight time with their mother other than in the home of the third respondent.

6. I have also taken up the recommendation of Ms M that once the children are stabilised in their living arrangements, that a paediatric assessment and perhaps a separate assessment with a child psychologist, be facilitated to identify their specific developmental needs.  All four of the parents (including Ms D) should participate to the extent that therapists for the children require them to do so.

7. Orders are made accordingly.

I certify that the preceding three hundred and thirty two (332) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 July 2014.

Associate:

Date:  23 July 2014