HOWELL & GAGNE

[2014] FamCA 1060

FAMILY COURT OF AUSTRALIA

HOWELL & GAGNE [2014] FamCA 1060

FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Where multiple allegations by parties of violence and abuse and the unacceptable risk of further violence, sexual abuse and physical abuse – Where in the absence of the child welfare authority intervening the Court was left with a choice between two relatively unsatisfactory parenting regimes for the child – Where members of both the maternal and paternal families have long histories of psychological instability – Where the mother’s partner engenders fear and apprehension in the child – Where the child is at risk of physical and psychological harm through subjection or exposure to abuse, neglect, and family violence in the mother’s household – Where the risks of harm to the child in the father’s household are not as pronounced – Where the removal of the child from the mother’s residential care is necessary – Where the father could not assume the full-time care of the child without the paternal grandmother’s assistance – Child to live with the father and paternal grandmother – Child to spend substantial time with the mother, provided she complies with injunctions restraining the child’s interaction with three persons associated with the maternal family.

FAMILY LAW – CHILDREN – Parental Responsibility – The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe family violence occurred between the mother and father and between the mother and her partner – Mother, father and paternal grandmother to all have equal shared parental responsibility.

Births, Deaths, and Marriages Registration Act 1995 (NSW)
Evidence Act 1995 (Cth) ss 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 117

APPLICANT: Ms Howell

RESPONDENT: Mr Gagne

INTERVENER: Ms Sanders

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1723 of 2013

DATE DELIVERED: 1 December 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 17, 18, 19 and 20 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Sharrock

SOLICITOR FOR THE APPLICANT: Craney Family Solicitors

COUNSEL FOR THE RESPONDENT: Mr R Wilkinson

SOLICITOR FOR THE RESPONDENT: Philip W Hill & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr A Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All former orders relating to the child X, born … 2007, (“the child”) are discharged.

2. The parties shall do all acts and things necessary to ensure the child is registered under the Births, Deaths, and Marriages Registration Act 1995 (NSW) with, and is thereafter known by:

   (a)The surname “Colbert-Howell”, provided the father does all acts and things necessary to change his surname to “Colbert” within 28 days of these orders; or otherwise

   (b)The surname “Gagne-Howell”.

3. The applicant (“mother”), respondent (“father”), and intervener (“paternal grandmother”) shall have equal shared parental responsibility for the child.

4. The child shall live with the father and the paternal grandmother.

5. Subject to the mother’s continuing compliance with Orders 10 and 11 hereof, each of the parties shall take all reasonable steps to ensure the child spends time with the mother as follows, or as otherwise agreed:

   (a)During school terms, each alternate weekend from the conclusion of school on Friday until 7.00 pm Sunday, commencing on the first Friday of each term;

(b)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and

(c)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.

1. Orders 4 and 5 are suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and

(b)Between 5.00 pm Saturday and 7.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the child shall spend time with the mother on the Mother’s Day weekend and with the father on Father’s Day weekend.

1. For the purposes of implementation of Orders 5(b) and 5(c) hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at 7.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid point is 12.00 noon on the day halfway between those first and last days.

2. For the purposes of implementing Orders 4, 5 and 6 hereof:

   (a)The mother shall collect the child:

   (i)from school, whenever the child is to begin spending time with her at the conclusion of school; or otherwise

   (ii)from the residence of the father and paternal grandmother; and

   (b)The father and/or paternal grandmother shall collect the child from the mother’s residence at the conclusion of the child’s expenditure of time with the mother.

3. Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child communicates privately by telephone with:

   (a)The mother each Wednesday at 6.00 pm when the child is living with the father and paternal grandmother, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father and paternal grandmother shall ensure that the child is able to receive the mother’s calls on that number at that time;

   (b)The father and paternal grandmother each Wednesday at 6.00 pm when the child is spending time with the mother, and for that purpose the father or paternal grandmother shall telephone the child on the telephone number provided to them by the mother, and the mother shall ensure that the child is able to receive the father’s or paternal grandmother’s calls on that number at that time; and

   (c)The parent with whom the child is not then staying, on the child’s birthdays at 6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

4. The mother is restrained from causing or permitting the child to be or remain in the physical presence of, or to communicate with:

   (a)       Mr N; and

   (b)       Mr D.

5. The mother is restrained from causing or permitting the child to be or remain in the physical presence of Mr W, unless personally supervised by her.

6. The parties shall ensure the child’s enrolment and participation until conclusion in any “protective behaviours” course or therapy recommended to them by the Independent Children’s Lawyer.

7. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

8. Each party is restrained from denigrating the others in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the others.

9. Each party shall notify the others of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parties about the condition and treatment of the child.

10. Each party, in so far as it is respectively known to them, shall keep the others informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.

11. Each party shall forthwith inform the others, and keep the others informed, in writing, of their respective current residential address, landline telephone number, mobile telephone number, and email address.

12. Within seven days hereof the parties shall cause the child to be delivered to the Independent Children’s Lawyer to have explained to him the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

13. Leave is granted to the parties to provide a copy of these orders to:

    (a)       The principal of any school attended by the child; and

    (b)The person who provides the “protective behaviours” tuition or therapy to the child.

14. Leave is granted to the Independent Children’s Lawyer to provide a copy of these orders and the reasons published for such orders to the Secretary of the NSW Department of Family and Community Services.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

17. The Independent Children’s Lawyer’s application for costs against each of the parties is dismissed pursuant to s 117(4) of the Family Law Act.

18. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Howell & Gagne 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: NCC 1723 of 2013

Ms Howell

Applicant

And

Mr Gagne

Respondent

And

Ms Sanders

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Sadly, the seven year old child who is the subject of these proceedings is at serious risk of being unable to fulfil his potential in life because the parenting capacities of the adults who have an interest in his welfare suffer from quite pronounced limitations.

2. The Family Consultant reported she had no confidence the adult carers of the child would prioritise the child’s needs over and above their own needs and wishes. The single expert psychiatrist also identified serious shortcomings in the adult carers’ capacities. In response to their opinions and recommendations, the Court invited the NSW Department of Family and Community Services (“the Department”) to intervene in the proceedings – twice – but both invitations were declined.

3. The paternal grandmother was granted leave to intervene in the proceedings during the course of the final hearing. While her involvement was a help, it was not a panacea.

4. In the absence of the Department, the Court was left with a choice between two relatively unsatisfactory parenting regimes for the child, neither of which optimally promoted the child’s best interests, so the unenviable task was to select the alternative which posed the least risk of harm to the child’s physical and psychological health. Despite the disrespect to the mother, father, and paternal grandmother such observations tend to imply, none is intended. It is simply recognition of the fact.

Background

1. The applicant mother is 24 years old. The child who is the subject of these proceedings is her oldest child. She has three other younger children and is currently pregnant with another. She is married to Mr H, who is 47 years of age and the father of her other children. Mr H was formerly married to the paternal grandmother.

2. The respondent father is 27 years old. He has no other children. He lives with the paternal grandmother and intends doing so for the remainder of his life.

3. The mother and father commenced a relationship in September 2006, when the mother was 15 years of age and the father was 19 years of age. The mother fell pregnant with the child in 2006, about a month after she turned 16 years of age. The child was born in 2007.

4. The parties’ relationship was not the happy affair for which they both yearned. Neither had an ideal childhood and they were both unprepared for the struggle their youthful parenthood imposed upon them. The mother was sexually abused as an adolescent over a number of years by the maternal grandmother’s partner and the father suffered from paranoid schizophrenia. Their relationship ended in August 2008 when the child was only 12 months of age.

5. About a month later, in early October 2008, Mr H began cohabitation with the mother and thereafter married her. As might be imagined, that development caused some angst within the paternal family.

6. The child lived with the mother but spent time with the father. After the father returned to live with the paternal grandmother in 2009 the child regularly spent time with the father and paternal grandmother in their household. That informal arrangement prevailed for years without the need for any litigation.

7. In July 2013, the father and paternal grandmother collected the child from school, took him to their home, and retained him in their care. The mother then immediately commenced these proceedings in the Federal Circuit Court seeking orders restoring the child to her care. The mother brought the proceedings against both the father and the paternal grandmother.

8. On 30 July 2013, interim orders were made with the parties’ consent for the child to live with the mother and to spend substantial and significant time with the father, provided any overnight visits with the father occurred in the presence of the paternal grandmother. Those orders operated successfully until the final hearing in November 2014.

9. For reasons which remain unexplained, even though the paternal grandmother was joined as the second respondent to the proceedings and bound by those interim orders, she was discharged as a party by the Federal Circuit Court.

10. The proceedings were transferred to this Court in May 2014 and entered into the Court’s Magellan protocol due to the parties’ reciprocal allegations about the child’s sexual and physical abuse in the respective households.

11. In reliance upon the Family Consultant’s recommendation in May 2014, an order was made in June 2014 inviting the Department to intervene as a party. The Department furnished a Magellan Report to the Court in August 2014 advising there would be no intervention, notwithstanding the Department’s conclusion at the time that:[1]

    The most recent risk assessment completed in August 2014 determined a risk level of “very high” [for the child in the mother’s household].

    and:

    The outcome of the most recent risk assessment on 14 August 2014 is that the children, including [the child], are in need of care and protection in the household of [the mother] and [Mr] [H].

    [1] Magellan Report, page 4

12. It could not be said the Department had faith the child’s welfare would be better served in the father’s household and expected orders would be made by the Court reversing the child’s residence, because the Department knew nothing of the father’s residence. The Department reported:[2]

    As [the child] spends only 2 days per fortnight in the [father’s] household this household was not included in the risk assessment process.

    [2] Magellan Report, page 4

13. Nothing had materially changed in the year immediately preceding the Department’s risk assessment in August 2014. An earlier risk assessment carried out by the Department in August 2013 also found the likelihood of future harm to the child and his step-siblings from both abuse and neglect in the mother’s household to be “very high”.[3]

    [3] Magellan Report, page 3

14. So, even though the Department considered as recently as August 2014 that the child was in need of removal from the mother’s care and it was unable to confirm the father’s household was any better or safer for him, the Department still chose not to intervene in these proceedings and pursue an allocation of parental responsibility for the child.

15. The single expert’s report was later furnished to the Court in October 2014. Although then still untested evidence, the single expert regarded both the mother and father as unsuited to residential care of the child. The single expert asserted the Department “would need to continue to provide ongoing support” and that the family “will need to be monitored and supported in the long term by [the Department]”.[4]

    [4] Single Expert Report, pages 21, 22

16. In response to that report, in October 2014, orders were made for the single expert report to be provided to the Department and the Department was again invited to intervene in the proceedings.

17. The Department did not do so. The Court received a letter from the Department after the final hearing had already commenced confirming the decision not to intervene.[5] The Department advised a new safety assessment had been conducted, but it apparently resulted in only reiteration of the previous safety plan, the efficacy of which was dubious. The safety plan entailed the mother’s promise not to leave the child with certain persons, one of whom was a known sexual offender and another of whom was a suspected sexual offender, even though the Department believed the mother had breached previous promises of that ilk by allowing one of those persons to sleep in their garage or in a car in their driveway.[6] The safety plan also required the mother to renew her engagement with family support services, from whom the mother had previously disengaged after only several months without the Department’s permission.[7]

    [5] Exhibit ICL1

    [6] Magellan Report, page 3

    [7] Magellan Report, page 3

18. If Departmental staff gullibly thought the Court would be re-assured by the safety plan devised for the child, they were in grievous error. Nor was the Family Consultant satisfied the “parental responsibility contract” struck between the Department, the mother, and Mr H was sufficiently protective. Giving the agreement a dazzling name does not make it work any better.

19. The Department’s decision meant the Court was limited to a choice between the mother, on the one hand, and the father and paternal grandmother, on the other, as the residential carer/s for the child.

Proposal of mother

1. The mother pressed for the orders set out within her Amended Initiating Application filed on 27 October 2014, save for several minor changes explained in final submissions.

2. She proposed that she, the father, and paternal grandmother all have equal shared parental responsibility for the child.

3. She wanted the child to remain living with her, but was content for the child to spend substantial amounts of time with the father and paternal grandmother, incorporating alternate weekends, parts of school holidays, and other special occasions.

Proposals of father and paternal grandmother

1. The father pressed for the orders set out within the minute of orders he tendered during final submissions.[8]

   [8] Exhibit F2

2. Like the mother, he proposed that the three parties have equal shared parental responsibility for the child.

3. He proposed that the child live with him and spend substantial amounts of time with the mother, incorporating alternate weekends, parts of school holidays, and other special occasions.

4. The only material way in which the paternal grandmother’s proposal differed was that she proposed the child live with both her and the father jointly. The father wanted the child to live only with him, even though he expected to always live in a common household with the paternal grandmother.

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer tendered a minute of the orders he proposed at the commencement of final submissions.[9]

   [9] Exhibit ICL2

2. His proposal was also for the three parties to have equal shared parental responsibility for the child.

3. He proposed that the child live only with the father, on condition the father maintained a common residence with the paternal grandmother, but if that condition was not fulfilled, then the paternal grandmother would assume sole residential care for the child.

4. The Independent Children’s Lawyer proposed that the child spend substantial amounts of time with the mother, incorporating alternate weekends, parts of school holidays, and other special occasions.

The evidence

1. The mother relied upon:

   (a)Her affidavit filed on 27 October 2014;

   (b)The affidavit of her husband, Mr H, filed on 27 October 2014; and

   (c)The affidavit of Ms A filed on 27 October 2014.

2. The father relied upon:

   (a)His affidavit filed on 7 November 2014; and

   (b)The affidavit of the paternal grandmother, Ms Sanders, filed on 7 November 2014.

3. As already mentioned, the paternal grandmother was granted leave to intervene in the proceedings at the conclusion of her cross-examination as a witness in the father’s case. She confirmed she had no other evidence to offer.

4. The Independent Children’s Lawyer did not separately adduce any evidence, but together with the parties relied upon:

   (a)The Magellan Report dated 19 August 2014, furnished to the Court by the Department;

   (b)The Family Report dated 9 May 2014, prepared by the Family Consultant; and

   (c)The report of the single expert psychiatrist, Dr R, dated 5 October 2014.

5. Both the Family Consultant and single expert were cross-examined, but their oral evidence only served to galvanise their original evidence. They were not seriously challenged about the efficacy of any conclusion they reached or any opinion they expressed. I therefore accept their evidence.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of child – primary considerations

Section 60CC(2)(a)

1. One issue about which there was no dispute in these proceedings was the quality of the child’s relationships with the mother and father. Each conceded the child had a meaningful relationship with the other, from which he derived considerable benefit.

2. Both the mother and father recognised the importance of the child retaining the quality of his relationship with both parents, as it was acknowledged the child should spend substantial and significant time with the parent with whom he did not live. Once she joined the proceedings as a party, the paternal grandmother shared the parents’ view. The orders will ensure that outcome.

Section 60CC(2)(b)

1. These proceedings were very troubling for a number of reasons.

2. First, the Department informed the Court it received a total of 36 reports about the child in the period between March 2008 and July 2014, many of which were made by mandatory reporters.[10]

   [10] Magellan Report, pages 1-2

3. Secondly, the Family Consultant reported there appeared to be “clear safety issues in each parent’s household” and that she had no confidence the child’s adult carers would prioritise the child’s needs over their own.[11]

   [11] Family Report, paras 105, 106

4. Thirdly, the single expert reported the choice between the two parents as residential carer for the child was “problematic”, because each of them had impaired parenting capacity and he had no confidence either parent could cope with the child’s residential care.[12]

   [12] Single Expert Report, pages 20, 22

5. In July 2013 the mother filed a Notice of Child Abuse and Family Violence making allegations against the father of past family violence and the risk of his physical abuse of the child.

6. In July 2013 the father also filed a Notice of Child Abuse and Family Violence alleging past sexual abuse of the child by the mother’s brother (Mr W), past physical abuse of the child by Mr H, and the unacceptable risk of the child’s sexual abuse by the maternal grandmother’s partner (Mr N).

7. The multiplicity of allegations of both historic violence and abuse and the unacceptable risk of further violence and abuse necessitates systematic analysis of the allegations.

Actual and prospective sexual abuse

1. The mother, maternal grandmother, father, and paternal grandmother all contended they were sexually abused as children.[13] By reference to the evidence adduced in the proceedings, to one degree or another, they have all been psychologically disturbed by their experiences, which seem to have either de-sensitised them or rendered them hyper-sensitive to the risk of the child’s sexual abuse.

   [13] Family Report, page 2, paras 4, 5, 8; Single Expert Report, pages 5-6, 9, 13

2. The catalyst for these proceedings was the child’s retention by the father and paternal grandmother, whose decision was motivated by the child’s revelation to the paternal grandmother during his holiday visit to their home in July 2013 about him being bathed by Mr W. The paternal grandmother deposed the child said to her while in the bath:[14]

   [Mr [W]] washes me [on the genitals] and I tell him to stop and he doesn’t listen to me.

   [14] Paternal grandmother’s affidavit, para 6, Annex A (paras 6-7)

3. On the strength of that statement alone, the paternal grandmother impulsively concluded Mr W had sexually interfered with the child while bathing him, even though his disclosure was quite equivocal. It is plausible the child was merely reporting that Mr W insisted on washing his genitals thoroughly because he was dissatisfied with the child’s efforts to do so without assistance. It should be remembered the child was still only five years of age at the time.

4. In any event, I accept the child said words to that effect to the paternal grandmother and that she honestly imputed sexual impropriety, because she immediately telephoned the mother to inform her of the child’s report.[15]

   [15] Paternal grandmother’s affidavit, Annex A (para 10); Mother’s affidavit, para 91

5. The mother similarly gave the disclosure insufficiently careful consideration. She impetuously rejected any suggestion her brother would have sexually abused the child without properly contemplating either the prospect of its occurrence or the consequences of her incorrect rebuttal of the allegation.[16]

   [16] Paternal grandmother’s affidavit, Annex A (paras 11-12)

6. The mother’s evidence demonstrated she received contradictory information from her family about the allegations, which contradiction should have caused her to think more carefully. The mother said in cross-examination that she directly challenged her brother after receiving the paternal grandmother’s telephone call and he flatly denied ever bathing the child, let alone fondling the child’s genitals while doing so. However, the mother earlier deposed in her affidavit to how the maternal grandmother had informed her Mr W did bathe the child, though his involvement was limited to washing the child’s back and passing him a towel.[17] Either Mr W did or did not bathe the child at some point in the past. The equivocation about whether he did or did not tended to fuel rather than diminish suspicion of him. The mother was therefore unwise to dismiss the allegation against her brother simply on the basis of her own observations of him and the failure of any of her children to report their sexual abuse by him to her.[18]

   [17] Mother’s affidavit, para 91

   [18] Mother’s affidavit, paras 92-94; Family Report, para 39

7. The paternal grandmother reported the child’s suspected sexual abuse by Mr W to the police and she made a formal statement. The complaint was investigated by Departmental caseworkers, but the child did not disclose to them any information that indicated his sexual abuse by Mr W.[19] The police also investigated the complaint.[20] There is no evidence the mother’s brother was ever charged and he did not give evidence in these proceedings. He did however deny the allegations to the Family Consultant and say he distanced himself from the mother’s children,[21] which the parties inferentially accepted as truthful because it was not the subject of any debate.

   [19] Magellan Report, page 3

   [20] Family Report, para 25

   [21] Family Report, para 59

8. The child told the Family Consultant he had not been washed by Mr W since he reported his discomfort with the practice to the paternal grandmother, and furthermore, he was not scared of Mr W.[22] The abatement of the child’s own concern about Mr W is noteworthy.

   [22] Family Report, para 94

9. By application of the civil standard of proof (ss 140(1), 140(2)(c) of the Evidence Act 1995 (Cth)), the evidence falls far short of proving the child was sexually abused by Mr W. The evidence is also barely capable of supporting a finding that Mr W poses an unacceptable risk of harm to the child by his subjection to sexual abuse.

10. Regardless, the worry about the existence of any such risk to the child posed by the mother’s brother is satisfactorily addressed by the imposition of an injunction restraining the mother from leaving the child in his unattended care. That was the only remedy sought by the father.[23] The Independent Children’s Lawyer instead proposed an injunction of finite duration, which would lapse upon further protective education of the child.[24] It was only the paternal grandmother who wanted a complete embargo on any future interaction between the child and Mr W.

    [23] Exhibit F2, Order 7

    [24] Exhibit ICL2, Order 10(d)

11. The mother said in cross-examination she would submit to and obey an injunction in the terms proposed by the father. Her compliance with the injunction can be a condition of the child living or spending time with her, which condition will be an inducement for her continued compliance. While any contravention of the injunction could go undiscovered, the child is now reaching a stage of maturity where he could be relied upon to reveal any contravention to the father or paternal grandmother without the need for his perpetual interrogation. I doubt the mother would be prepared to risk severance of her relationship with the child by contravention of the injunction.

12. The worry about the child’s exposure to the risk of harm through sexual abuse at the hands of other persons is, however, much more disturbing.

13. Between July and December 2013 the Department received five reports alleging the child and his step-siblings were at risk of sexual abuse by reason of their unsupervised contact with two adult males who have previously been charged with sexual abuse of children under 16 years of age.[25] Those two men were Messrs N and D. In August 2013, the Department concluded those men posed risks of harm to the child and struck an agreement with the mother that none of her children should have any contact with either of those men unless supervised by a suitable adult.[26]

    [25] Magellan Report, page 3

    [26] Magellan Report, page 3

14. As already mentioned, Mr N is the maternal grandmother’s current partner. Until recently, he lived with the maternal grandmother in the apartment which adjoins the mother’s apartment. The apartments share a party wall and have adjacent front doors. The evidence disclosed that, although Mr N now lives with and cares for his own mother in another suburb, he is a regular visitor at the maternal grandmother’s adjoining apartment.

15. Mr N (who is affectionately known by a variety of nicknames) has served many terms of imprisonment for a variety of serious offences. Relevantly, he pleaded guilty to two counts of “aggravated sexual assault of a person under 16 years”, for which he was imprisoned and is now listed on the Child Sex Offenders Register.[27]

    [27] Family Report, para 21

16. Apart from his proven sexual molestation of a minor, he allegedly sexually assaulted his intellectually impaired teenage daughter. The police appear to accept the truth of the allegations made against Mr N by his daughter and police records disclose their belief he “continually manipulates and grooms” his daughter. The evidence is unclear whether those allegations are currently under investigation or whether any prosecution of Mr N is planned.[28]

    [28] Family Report, para 22

17. There can be no doubt about the maternal family’s knowledge of Mr N’s reprehensible sexual proclivities. The mother admitted to the Family Consultant she has known such details for “a long time”.[29] If she knows, so must the maternal grandmother, even though the maternal grandmother only elliptically admitted knowledge of “certain allegations” and the potential of all men for “darkness” in their character.[30] The mother deposed Mr N confessed his past convictions to her and the maternal grandmother.[31] Despite the maternal grandmother’s knowledge of Mr N’s turpitude, she persists in the maintenance of her relationship with him. There is an uncontroverted suggestion the maternal grandmother and Mr N have been in a relationship for some years and their relationship is likely to endure for the foreseeable future.[32]

    [29] Family Report, para 40

    [30] Family Report, para 55

    [31] Mother’s affidavit, para 85

    [32] Family Report, paras 20, 58

18. The mother asserted she ensures the children are never left alone with Mr N,[33] but that is far too relaxed an attitude about Mr N. He visits the maternal grandmother regularly and the maternal grandmother often cares for the children, including the child. The maternal grandmother could not be trusted to safely supervise the child with Mr N. The child should have no interaction of any kind with him, just as the Family Consultant said during cross-examination.

    [33] Family Report, para 40; Mother’s affidavit, paras 86-89

19. Worryingly, the single expert reported the mother told him that, while she was cautious of Mr N, she believed the restrictions against him were ridiculous.[34] Her reference to the restrictions was an apparent reference to the injunction consensually imposed in July 2013 prohibiting the parties from allowing the child to come into contact with Mr N.[35] The mother was also dismissive about the seriousness of Mr N’s conviction for sexual abuse of a minor. Although she may have ensured the children were always supervised with Mr N, she only acted to keep the child completely away from him after the injunction was imposed in July 2013.[36]

    [34] Single Expert Report, pages 11-12

    [35] Order 1.6 made on 30 July 2013

    [36] Mother’s affidavit, paras 86-89

20. During cross-examination the mother maintained that her reference to “ridiculous restrictions” when conferring with the single expert was a reference to the restrictions affecting her brother, Mr W, rather than a reference to Mr N, since Mr W was also the subject of an injunction, albeit less severe in form than the one applicable to Mr N.[37] I do not accept the mother’s evidence on that point. The context of the single expert’s discussion of that aspect in his report was far too detailed to fairly permit an inference that he mistook the mother’s remarks about her brother for remarks about Mr N. While the single expert was prepared to fairly admit the possibility of his error during cross-examination, he seriously doubted any such error.

    [37] Order 1.9 made on 30 July 2013

21. Mr D is the boyfriend of Ms A, who is the daughter of Mr H and the paternal grandmother. She currently lives with the mother and Mr H. The father and paternal grandmother were both concerned about Mr D’s potential sexual abuse of the child too, even though he was not mentioned in the father’s Notice of Child Abuse and Family Violence.

22. Police records seen by the Family Consultant tend to suggest Mr D is a “suspect in matters involving the sexual abuse of children” who has “previously been charged with child sex offences”, but whose name is “not currently on the child sex offender’s register”. The mother admitted to the Family Consultant the police had warned her about Mr D and told her to keep the children away from him.[38] As already mentioned, the Department also struck an agreement with the mother that she would not allow any of her children near Mr D without suitable adult supervision. None of that evidence was the subject of even the slightest dispute during the hearing.

    [38] Family Report, para 25

23. The only sensible conclusion is that Mr D poses as big a threat to the child’s safety as Mr N. The child should have no interaction of any kind with him either.

24. At the time of their investigation in July 2013, the police entertained little doubt the mother was leaving the children in the company of both Mr N and Mr D without any supervision.[39] Unlike the case with Mr W and Mr N, no injunction was made by the Court in relation to Mr D in July 2013, but the mother did sign a safety plan with the Department which precluded her from allowing Mr D to sleep at or around her home. Nevertheless, in July 2014 it was reported to the Department the mother was breaching the terms of that plan.[40] Mr H admitted in cross-examination that they allowed Mr D to sleep in his car outside their apartment because he was on “public property”.

    [39] Family Report, para 25

    [40] Magellan Report, page 3

25. The single expert expressed “great concern” about the mother’s lack of insight and poor judgment.[41] The Department also remains worried that the mother and Mr H do not seem to understand the gravity of the risk to the children through their exposure to sex offenders.[42] The Family Consultant endorsed those views during her cross-examination. She believed the mother (and Mr H) had no insight into the risk of sexual abuse posed to the child.

    [41] Single Expert Report, pages 8, 12, 18

    [42] Magellan Report, page 3

1. Collectively, the mother’s dismissive attitude about the seriousness of the risk posed by Mr N (even though there is no suggestion of her contravention of the existing injunction made in July 2013) and her reported breach of the Department safety plan in relation to Mr D (notwithstanding official warnings about the danger he posed) give no reason for confidence about her willingness and ability to adequately protect the child against the risk of his sexual abuse by those men. The risk of the child’s harm is potent because Mr N maintains his relationship with the maternal grandmother (who still lives next door to the mother) and Mr D maintains his relationship with Ms A (who still lives with the mother and Mr H).

2. As if that evidence was not serious enough, oral evidence was given by the mother and Mr H in cross-examination about their more recent observation of sexualised behaviour by the child.

3. The mother said she saw the child pull down the pants of his three year old step-sister and “touch her private part”. She saw that occur on two or three occasions over a period of approximately three months between May and August 2014. The mother acknowledged it was not innocent infantile exploration, but rather inappropriately sexualised behaviour by the child, which she presumed must have resulted from his exposure or subjection to some form of sexuality. Curiously, she immediately concluded some sexual misadventure had befallen the child in the father’s household, but not in or around her own home. There can be little doubt about the seriousness of the problem or its longevity, since the mother took steps to enrol the child at a children’s sexual behaviour clinic at a local hospital in April 2014.[43]

   [43] Mother’s affidavit, para 61, Annex B

4. Mr H said he saw the child do “silly things” with his step-sister, which he elaborated to be a “pumping motion”. He only saw it occur once a few months ago. He too concluded the child must have been exposed to some sort of sexual conduct, which he was replicating.

5. It may be the risk of the child’s sexual abuse has already been realised, but at the very least he is at unacceptable risk of physical and psychological harm through sexual abuse at the hands of Mr N and Mr D while ever the child lives with the mother. She does not have the proven ability to keep the child away from those men and the child’s safety remains compromised unless he is kept away from them.

6. The imposition of injunctions requiring the mother to keep the child away from those men altogether is the least that should be done to promote the child’s safety. The mother contended that would be enough, but I am not persuaded it is a sufficiently strong measure to eradicate the risk of harm to the child. Removal of the child from the mother’s residential care is also necessary. While the child will still visit the mother regularly, the risk of his harm is reduced if he only visits the mother and does not reside with her. As is the case in respect of Mr W, the child’s expenditure of time with the mother should be conditional upon her compliance with the more onerous injunctions that will apply to Mr N and Mr D.

Actual and prospective physical abuse

1. Contemporaneously with his disclosure about Mr W to the paternal grandmother in July 2013, the child told the paternal grandmother Mr H grabs him around the throat and pushes him up against the wall.[44]

   [44] Paternal grandmother’s affidavit, para 6, Annex A (para 8)

2. There was no dispute about the child having said words to that effect to the paternal grandmother. Nor was there any dispute over the implications of the child’s revelation about Mr H. If Mr H behaved towards the child as the child reported, it was plainly abusive. Such behaviour could not be fairly described as legitimate physical discipline of a child then aged only five years.

3. The child told the Family Consultant he did not like Mr H because he “constantly yells at him and pushes him around” and that he is treated differently from the children born to the mother and Mr H.[45]

   [45] Family Report, paras 36, 92

4. Mr H denied to the Family Consultant[46] and during cross-examination that he behaved towards the child in the manner alleged, but he had no effective corroboration from the mother. She deposed she had never seen Mr H act inappropriately with any of her children and he does not physically discipline the children,[47] but that evidence is not easily reconciled with her past admissions to police in July 2013 that Mr H “is alcohol dependent and has a short fuse with the kids”.[48]

   [46] Family Report, para 52

   [47] Mother’s affidavit, paras 37, 82

   [48] Family Report, paras 25-26

5. Most probably, Mr H has occasionally acted towards the child in a manner which technically amounts to an assault, and therefore constitutes “abuse” (s 4(1)). It may be he has not physically injured the child, as the mother reported to the Family Consultant,[49] but that does not necessarily account for the fear, apprehension and unhappiness Mr H engenders in the child. Living with perpetual fear, apprehension, or unhappiness is bound to be psychologically harmful for the child eventually.

   [49] Family Report, para 39

6. The risk of that harm cannot be satisfactorily attenuated if the child remains living with the mother. She is married to Mr H and they have three – soon to be four – children together. The mother and Mr H intend to cohabit indefinitely. If the child lives with the mother then he must necessarily also live permanently with Mr H.

7. Conversely, the mother alleged her concern about the child’s potential physical abuse by the father. Such concern was explained by her in the following terms in the Notice of Child Abuse and Family Violence she filed:[50]

   The father is schizophrenic…and the mother is concerned that due to the child’s behavioural issues the father will be violent towards him.

   [50] Notice of Child Abuse and Family Violence filed 17/7/13, para 18

8. No evidence at all was adduced to vindicate her concern about the father posing an unacceptable risk of harm to the child through physical abuse. The mother presumed the risk to exist simply because he is schizophrenic.

9. In fact, the mother told the Family Consultant she did not really have any concerns about the child spending time with the father.[51] Of course, if the mother genuinely entertained concern about the child’s physical abuse by the father, then it is quite unlikely she would have made such a concession to the Family Consultant.

   [51] Family Report, para 48

Actual and prospective family violence

1. The evidence adduced by the parties and witnesses about past family violence was impossible to reconcile and was the subject of only perfunctory cross-examination, which inhibits clear factual findings. The Independent Children’s Lawyer ultimately submitted the issue of family violence need not be “over-played”. Nonetheless, it was an issue of significance to the parties so some fact-finding effort is required.

2. The father and paternal grandmother alleged Mr H was violent towards them in the past, which Mr H denied. Ms A purported to corroborate Mr H,[52] but the most she could logically say was that she did not witness any violent conduct between them. She could not have been in the constant company of her parents and her half-brother (the father) throughout her life so she could not attest to what occurred between them in her absence.

   [52] Affidavit of Ms A, paras 16-20

3. Mr H alleged the paternal grandmother was violent towards him in the past during their cohabitation, which she admitted when cross-examined. In the certain knowledge such violence had occurred, Ms A’s denial of any violence at all between them was therefore unreliable.

4. The father and paternal grandmother were concerned the child would be exposed to any family violence that occurs between the mother and Mr H,[53] even though that concern was not specified in the father’s Notice of Child Abuse and Family Violence.

   [53] Family Report, para 63

5. There seems little doubt the mother’s relationship with Mr H has been troubled. The mother admitted she recently slept apart from Mr H for months following an argument. Ms A admitted that on two past occasions she took all of the children into a bedroom away from volatile arguments between the mother and Mr H. Although she may not have witnessed overt physical violence between them,[54] “family violence” and children’s “exposure to family violence” are concepts which now have much broader meaning (s 4AB). In all probability, if arguments between the mother and Mr H were sufficiently hostile to prompt Ms A to lead the children away for their protection, then they were exposed to family violence in the mother’s household. Tellingly, the child told the Family Consultant the mother instructed him not to say anything about the fighting in her household.[55]

   [54] Affidavit of Ms A, paras 29-31

   [55] Family Report, para 93

6. The risk of the child’s exposure to family violence in the mother’s household remains pronounced, but it is not such an unacceptably high risk that the child should be prohibited from visiting the mother at her home. The risk could only be quantified as unacceptably high if the child was required to remain living with the mother and Mr H indefinitely, because the opportunity for his exposure would then be very much greater.

7. The mother alleged the father was frequently violent towards her during their relationship.[56] She even made a contemporaneous complaint about it to the paternal grandmother.[57] The father did not deny those allegations, either to the Family Consultant or in his affidavit. In cross-examination he actually admitted his past confession of violent conduct towards the mother on one occasion, when he pushed her into a cupboard during an argument. The father’s violence towards the mother probably was more expansive than that single episode, but family violence between them ceased when they separated in August 2008. There was no evidence of any violent conduct directed by the father to the mother in the last six years. It is unlikely to recur.

   [56] Mother’s affidavit, paras 11-17

   [57] Paternal grandmother’s affidavit, para 24

8. There was no evidence at all about the occurrence of family violence in the household shared by the father, paternal grandmother, and the paternal grandmother’s partner. There is no risk of the child’s harmful exposure to family violence in their household.

Actual and prospective neglect

1. Since April 2013 the Department has received 15 reports of physical and emotional neglect of children in the mother’s household. It was alleged the children were unkempt and inadequately fed and there was an apparent lack of attachment between the mother and the children.[58] Quite a number of those reports were made by mandatory reporters.

   [58] Magellan Report, pages 2-3, 5-7

2. The Department ensured the mother’s access to numerous community services, but her acceptance of assistance has been spasmodic.

3. She was referred to Brighter Futures for “parenting support and skills development” in May 2012, but withdrew in late 2012.[59] Further services were offered to and accepted by the mother between April 2013[60] and May 2014,[61] but overall the provision of such community services was reported to have resulted in only “incremental changes” within her household with respect to improved hygiene and attendance at appointments.[62]

   [59] Magellan Report, page 3

   [60] Magellan Report, page 3

   [61] Mother’s affidavit, para 113, Annex D

   [62] Magellan Report, page 3

4. More recently, the Department needed to re-engage with the mother and Mr H, which resulted in their execution of a “parenting responsibility contract”.[63] Evidently, the Department considers the mother and Mr H need much more help than they have already received with the children, which is precisely why the Family Consultant considered the Department should intervene in these proceedings.

   [63] Exhibit ICL1

5. The mother asserted she has done “everything for the children” to the virtual exclusion of all others,[64] so there can be no doubt any shortcomings in their care and conditions are attributable principally to her.

   [64] Mother’s affidavit, para 99

6. Some service providers have very recently suggested much greater improvement of the mother’s parenting capacity,[65] but the more cautious assessment of her gains by the Department is probably more reliable than the casual opinions of service providers who do not wish to compromise their therapeutic alliance with her.

   [65] Exhibits M1, M2

7. The risk of the child suffering harm through his neglect in the mother’s residential care remains pronounced. That risk will likely increase after the mother gives birth to her fifth child in several months and would only be compounded by any withdrawal of support services for the mother by the Department. Obviously enough, the Department cannot be expected to indefinitely expend its resources supporting parents whose parenting capacity shows no encouraging signs of material and sustained improvement.

Best interests of child – additional considerations

1. Members of both maternal and paternal families have long histories of psychological instability, including schizophrenia, bi-polar disorder, borderline personality disorder, major depressive disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, and psychosexual disorder.[66]

   [66] Family Report, pages 2-3, paras 8, 9

2. At the suggestion of the Family Consultant,[67] the single expert was retained to express opinions about whether the parents have a personality disorder or psychiatric condition which could affect their parenting capacity.[68]

   [67] Family Report, paras 105, 106

   [68] Single Expert Report, page 3

3. The paternal grandmother was not included in that assessment because she was not a party to the proceedings at the time the single expert report was commissioned. Nevertheless, it is beyond doubt the paternal grandmother has been diagnosed with borderline personality disorder, bi-polar disorder, and depression.[69]

   [69] Family Report, para 8

4. The paternal grandmother also conceded her partner (Mr S), with whom she cohabits, is also a schizophrenic. His condition was previously so uncontrolled that some years ago he attempted an armed robbery with his face plastered with food paste as a disguise.

5. The conditions of both the paternal grandmother and her partner are currently controlled. Both of them are constantly medicated and they submit to regular medical checks. The paternal grandmother consults her doctor once or twice per month. The paternal grandmother said she was familiar with the behavioural symptoms that warned of relapse. Her evidence was reliable because her last episode of relapse occurred in 2011 and, aware of its onset, she voluntarily admitted herself to hospital for treatment.

6. The father most likely has “chronic schizophrenia”.[70] The single expert explained in cross-examination that the reference to chronicity means the condition is long-standing rather than acutely serious.

   [70] Single Expert Report, page 17

7. While the symptoms of the father’s condition may not presently be prevalent, there is no doubt he has been quite troubled in the past. He attempted suicide as a youth and was hospitalised as a consequence.[71] The single expert harboured “some concerns” he could have a recurrence of psychosis.[72]

   [71] Single Expert Report, page 14

   [72] Single Expert Report, page 17

8. The father conceded he voluntarily ceased taking his prescribed medication some years ago, contrary to the instructions issued to him by his former psychiatrist. Nonetheless, he deposed he had not suffered any adverse symptoms as a result of ceasing his medication.[73] The single expert agreed that was plausible. The symptoms of schizophrenia range along a spectrum of severity and mere diagnosis with the condition does not of itself cause the person to be dangerous or deprive the person of all parenting capacity.

   [73] Father’s affidavit, para 17

9. However, there is reason to suspect the father’s condition is not as stable as he asserted. The father admitted that some months ago at a party he consumed alcoholic drink and then “flipped out”, by which phrase he meant he acted erratically. His conduct was abnormal and disproportionate to the consumption of a single alcoholic drink. During a medical appointment in March 2014 the father admitted to the doctor that the paternal grandmother believed he should “go back on his meds”, but he did not do so.

10. According to the single expert, the father’s condition restricts his level of functioning and prevents him from being self-sufficient. He is and will remain reliant upon the paternal grandmother for support. Axiomatically, he could not provide residential care for the child without the continuing support and “substantial assistance” from the paternal grandmother.[74] In cross-examination, the Family Consultant was inclined to disagree with the single expert about the degree to which the father’s parenting capacity was depreciated, but since she recommended procurement of the single expert’s opinion on that precise issue, she must inferentially defer to his opinion. I accept the single expert’s opinion. Importantly, both the father and paternal grandmother admitted in cross-examination that he could not assume the full-time care of the child without the paternal grandmother’s assistance.

    [74] Single Expert Report, page 17

11. The mother had no diagnosable psychological condition, but the single expert considered she “probably has a mixture of some borderline features and independent features” and consequently a “vulnerable personality”.[75] The core characteristics of borderline personality are fears of abandonment, affective instability, poor sense of self and identity, poor choice of relationships, feelings of emptiness, and low self-esteem.[76]

    [75] Single Expert Report, pages 19, 20

    [76] Single Expert Report, page 19

12. The single expert held “major concerns” about her ability to cope with the parenting load of four young children in circumstances where the child exhibits oppositional defiant behaviour and her other three younger children also experience developmental and behavioural problems.[77] Despite his undoubted love for the mother and his step-siblings, the child has experienced emotional disturbance in the mother’s care. He needed to be assessed by a child psychological service because he was reported to be “hearing voices” and he attempted to suffocate one of his younger step-siblings.[78]

    [77] Single Expert Report, page 18; Mother’s affidavit, paras 48-50, 56, 69-80

    [78] Family Report, page 3

13. Of course, the load on the mother is only compounded by other factors not known to the single expert: she is pregnant and due to give birth to her fifth child in 2015; a recent disagreement with the maternal grandmother has resulted in reduced support from her; and Mr H works up to 60 hours over six days each week so he is able to offer only very limited household support to her. During cross-examination the mother, showing some insight, agreed the load was too large for her to carry.

14. The conditions in the mother’s home are not ideal for the child. The mother conceded to the Family Consultant their apartment was “really too small” for the family’s needs,[79] and Mr H agreed it was too small and also unsuitable for other reasons.[80] It will only get worse once the mother gives birth to her fifth child in the next few months.

    [79] Family Report, para 47

    [80] Family Report, para 50

15. The child is only seven years of age, but his views should still be accorded some weight. The child told the Family Consultant he likes being at home with the mother and his step-siblings, he likes visiting the father and paternal grandmother, he prefers the mother to care for him if he is unwell, he would like to continue living with the mother, and he would prefer to keep arrangements as they are even though he knows the father wants him to live with him instead.[81]

    [81] Family Report, paras 90, 91, 96

16. Some trepidation should attend any decision to remove the child from the residential care of the mother in such circumstances, but the transition should not be so difficult as to be unmanageable. The mother acknowledged to the Family Consultant the child enjoys his visits to the father and “counts down the days until it is time”.[82] The child will be initially upset leaving the care of the mother, but he will likely adapt relatively quickly.

    [82] Family Report, para 48

Conclusions and orders

1. The presumption of the allocation of equal shared parental responsibility for the child to his parents does not apply because there are reasonable grounds to believe the father engaged in past family violence with the mother, Mr H engaged in past family violence with the mother, and Mr H physically abused the child in the past (s 61DA(2)).

2. Even if that were not so, the presumption of equal shared parental responsibility would be rebutted (s 61DA(4)). The parents alone do not have sufficient proven capacity to make well-considered decisions about important issues in the child’s life without input from external sources. The paternal grandmother is the only other person the Court has power to bind by orders in these proceedings.

3. Most communication about the child occurs between the mother and paternal grandmother, but the mother and father are also capable of courteous correspondence. For example, the mother recently invited the father to an event at the child’s school.[83]

   [83] Father’s affidavit, para 21

4. I am satisfied the unanimous proposal for the mother, father, and paternal grandmother to have equal shared parental responsibility for the child is appropriate. The orders so provide.

5. Section 65DAA of the Act has no application since, although equal shared parental responsibility for the child is ordered, it has been allocated to the three parties – not exclusively to the mother and father.

6. The child should live with the father and the paternal grandmother – not simply the father. I adopt the paternal grandmother’s proposal in that respect and reject the proposals of the father and Independent Children’s Lawyer. As the Family Consultant said in cross-examination, there is safety in numbers. The risks to the child living in the paternal family home are reduced if the occupants of that household are collectively bound by the orders. No hardship is occasioned to the father and paternal grandmother by such an order since they both expect they will live together indefinitely anyway.

7. The decision for the child to live with the father and paternal grandmother is influenced by: the “primary considerations” of the child’s exposure to the unacceptably high risk of harm through sexual abuse by Mr N and Mr D, the more moderate risk of harm through sexual abuse by Mr W, the more moderate risk of harm through physical abuse by Mr H, the unacceptably high risk of harm through witnessing family violence committed between the mother and Mr H, and the more moderate risk of harm through neglect by the mother; and the admitted likelihood of the mother’s inability to cope with the current and expected overwhelming parenting load.

8. Factors which supported the child’s continuing residence with the mother were: reluctance to separate the child from the mother, who has been his primary carer since birth; reluctance to separate the child from his step-siblings, who will continue to live with the mother; the child’s declared desire to remain resident with the mother; the prospect the mother’s parenting capacity will appreciable improve with continued support provided by the Department; and the chance of the father and paternal grandmother suffering recurrence of mental ill health. Nevertheless, those factors were less influential than the features of the evidence that favoured reversal of the child’s residence.

9. The Family Consultant and single expert both opined there were less risks of harm for the child living with the father and paternal grandmother than with the mother,[84] which evidence they endorsed during cross-examination. They both recommended the child live with the father and paternal grandmother. The Family Consultant recommended in cross-examination that the change of residence occur immediately.

   [84] Family Report, paras 35, 105, 106; Single Expert Report, page 21

10. The next question to be addressed is the time the child should spend with the mother. It was uncontroversial such visits should incorporate alternate weekends during school terms, half of school holidays, and other special occasions.

11. There was some minor controversy over the duration of the child’s visits with the mother each alternate weekend and the manner in which the child would be exchanged between the parties.

12. The parties live 33 kilometres apart. It takes 30-40 minutes to drive between their homes. The mother and father cannot drive, but Mr H and the paternal grandmother both can. They and others assist the parents with transport.[85]

    [85] Mother’s aff, paras 109-110; Father’s aff, para 30; Paternal grandmother’s aff, para 20

13. The mother submitted she would be able to collect the child from school on Friday afternoons on the weekends he would spend time with her. At least the paternal grandmother saw no problem with that arrangement. The father disagreed, but he had no good reason. The child’s collections during school terms will therefore occur at his school.

14. The mother also said she would be able to return the child to school on the following Monday. That was opposed by the father, the paternal grandmother, and the Independent Children’s Lawyer. The apparent chaos in the mother’s household was a material consideration in these proceedings. It would be better for the child when he begins each school week to be settled and refreshed by a sound night of sleep on Sunday night. That is more likely to occur in the household of the father and paternal grandmother, rather than the mother’s home. The child would also have to be driven some distance to school from the mother’s home on Monday mornings. The child will therefore return to the father and paternal grandmother on Sunday evenings.

15. If the mother collects the child from school during school terms and from the paternal family home in school holidays, the father and paternal grandmother can arrange his collection from the mother’s home when he is due to return to their care. That will share the travel burden equitably. If they are dissatisfied with that arrangement they can agree otherwise.

16. I accept the Family Consultant’s evidence that the child should only spend one week at any one time with the mother during school holidays. That will ensure the mother and child are reprieved of lengthy visits when the mother already has her hands full with the other younger children and also enable more frequent checks on the child’s progress while in her care. Therefore, summer school holidays will be split on weekly rotations.

17. Special arrangements are made for the child to spend time at Christmas and on Mother’s Day and Father’s Day weekends between the two families. All of the parties wanted such arrangements embedded in the orders. There was no debate about their proposals, even though they differed slightly, which presumably means the differences were immaterial.

18. Injunctions relating to Messrs N, D and W are made as already discussed in these reasons. The expenditure of time by the child with the mother is conditional upon the mother’s compliance with the injunctions.

19. The Family Consultant advised that the child be given “protected behaviours” education, to help guard against the risk of his abuse. The Independent Children’s Lawyer proposed orders to achieve that outcome. Orders are made for the child to receive such education, albeit that the orders are not styled in the manner drafted by the Independent Children’s Lawyer.

20. Prescriptive orders are made for the child to have telephone communication with both families, consistent with the Independent Children’s Lawyer’s proposal. Only the mother submitted against that proposal and she eventually capitulated.

21. The mother was keen to change the child’s surname,[86] though her final submission on the issue was quite different from the evidence she adduced. The child will now live with the father and paternal grandmother, but they both have different surnames, which surnames are also entirely different from the child’s.

    [86] Mother’s affidavit, paras 67-68

22. The father said he shortly intends to revert to use of the surname “Colbert”. The child has always been known by the hyphenated surname “Gray-Colbert”. The mother’s surname prior to her marriage to Mr H was “Gray”, but she expects to continue using “Howell” as a surname indefinitely. All of her other children use that surname.

23. The child’s name should allow him to identify with both parents and his step-siblings. Retention of a hyphenated surname will help achieve that aim. Since he will move to live with the father and paternal grandmother in a different district, necessitating his attendance at a new school, a change of surname will cause him no embarrassment among existing school peers. Assuming the father shortly changes his surname, as he said he would, the child’s surname should be “Colbert-Howell”. If he does not, then the child’s surname should be “Gagne-Howell”. The father’s surname should precede the mother’s because the child will live with the father (and paternal grandmother).

24. Leave is granted to the parties to provide copies of the orders to the principal of any school attended by the child and to the person selected to provide the child with “protected behaviours” education.

25. Leave is granted to the Independent Children’s Lawyer to provide a copy of the orders and these reasons to the Department, which leave the Independent Children’s Lawyer wanted.[87]

    [87] Exhibit ICL2, Order 12(b)(ii)

26. The Independent Children’s Lawyer also wanted an order compelling the parties to authorise the Department to keep them all appraised of developments within the mother’s household pertinent to the child’s welfare.[88] No such order is made. The Department exercises statutory powers and functions in relation to the care of children believed to be at risk of serious harm, which requires it to liaise with those persons who hold parental responsibility for any child under its consideration. Any concern about serious harm to the child while spending time with the mother would necessarily need to be raised with the father and paternal grandmother because they share equally in his parental responsibility. There is no utility making an order directing the Department to do that which it is already required to do.

    [88] Exhibit ICL2, Order 11(g)

27. The Family Consultant agreed with the proposition that the orders should be explained to the child impartially by the Independent Children’s Lawyer, rather than by any of the parties. An order is made to that effect.

28. The remaining orders are self-explanatory and could not be the subject of sensible opposition.

29. The Independent Children’s Lawyer made an application for costs against all three parties at the conclusion of final submissions, but simultaneously conceded each of the three parties were either recipients of grants of legal aid or would suffer financial hardship if required to meet any costs order. In view of the Independent Children’s Lawyer’s very fair concession, his oral application for costs is dismissed pursuant to s 117(4) of the Act.

I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 December 2014.

Associate: 

Date:  1 December 2014