Hua & Liu
[2019] FamCA 120
•8 March 2019
FAMILY COURT OF AUSTRALIA
| WRAGGE & WRAGGE AND ORS | [2018] FamCA 120 |
| FAMILY LAW – CHILDREN – Application by child’s maternal grandparents for a child to live with them – Application by respondent mother for child to live with her in circumstances where child has been living with maternal grandparents in the interim where child lived with the her prior to proceedings commencing – Separation of siblings – With whom a child lives – With whom a child spends time and with whom a child communicates – Allegations of violence – Orders that child live with the maternal grandparents – Orders that maternal grandparents have sole parental responsibility for the child – Order that mother spend supervised time with the child. |
| Family Law Act 1975 (Cth) |
| J v C in [1969] 1 ALL E.R. 824 Yamada & Cain [2013] FamCAFC 64 |
| 1st APPLICANT: | Mr Wragge |
| 2ND APPLICANT: | Ms C Wragge |
| 1st RESPONDENT: | Ms Wragge |
| 2nd RESPONDENT: | Mr Garnier |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
| FILE NUMBER: | HBC | 327 | of | 2018 |
| DATE DELIVERED: | 8 March 2019 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 16, 17 & 18 May 2018, 5, 6, 7, 8 & 9 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr Coleman SC |
| SOLICITOR FOR THE APPLICANTS: | Gibson Howlin Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Saw |
| SOLICITOR FOR THE 1ST RESPONDENT: | Corbett Jessop Law |
| COUNSEL FOR THE 2ND RESPONDENT: | In person |
| SOLICITOR FOR THE 2ND RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
Orders
All previous parenting orders in relation to K Wragge-Garnier born … 2006 (‘the child’) are dismissed.
Mr Wragge and Ms C Wragge (‘the maternal grandparents’) shall have sole parental responsibility for the child.
In regard to any decision which the maternal grandparents make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long-term welfare of the child, they shall, where reasonably practicable, undertake the following actions before making such decision:-
if possible to provide Ms Wragge (‘the mother’) with no less than 7 days’ notice in writing of any such proposed decision with respect to the child; (a)
the maternal grandparents are to consult with the mother by email or text communication unless they elect to communicate by phone or in person with regard to any such proposed decision and make a genuine effort to give consideration to the mother’s expressed views and, should the relationship between the parties’ permit, make a genuine effort to reach agreement about any such proposed decision with respect to the child; and(b)
in the event that no agreement is reached between the parties, the maternal grandparents shall make the final decision and within 7 days of so doing, provide the mother with written confirmation of the decision noting that email or text message is sufficient.(c)
The child shall live with the maternal grandparents.
The mother shall spend time with the child, as mutually agreed with the maternal grandparents, subject always to such time being supervised by either one of the maternal grandparents, or any of the mother’s siblings, Ms E Wragge, Ms F Wragge, or Mr H Wragge, each of whom has given or must give an appropriate Undertaking to the Court as to their role to supervise.
Subject to the child’s wishes, the maternal grandparents shall encourage the child to spend time with Mr Lucas (the father of the child’s younger sister) during the time which her younger sister is to spend with him pursuant to Court Orders or otherwise.
The maternal grandparents will use their best endeavours to arrange and facilitate time with the mother on special occasions such as Christmas Day, Easter, the child’s birthday, Mother’s Day and the mother’s birthday.
The maternal grandparents shall facilitate and encourage communication between the mother and the child by telephone, Skype or FaceTime, at reasonable times.
The maternal grandparents are to use their absolute discretion as to whether to pass to the child any communications received from the child’s biological father, Mr Garnier.
The maternal grandparents are permitted and authorised to change the surname name of the child ‘Wragge’.
As provided by s 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW), the maternal grandparents jointly, have leave and are permitted to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales, to register the name of the child formally known as K Wragge–Garnier to K Wragge.
The Registrar of Births, Deaths and Marriages in and for the State of New South Wales is requested to register the name of the child formally known as K Wragge–Garnier to K Wragge.
The maternal grandparents shall notify the mother as soon as practicable if the child should suffer any illness or injury requiring hospital admission, such notification to include the address and telephone number of the hospital.
The maternal grandparents are permitted to allow the child to travel internationally for holidays, school, sporting excursion or otherwise provided that this authority does not permit or allow the maternal grandparents from changing the child’s place of habitual residence to a State outside the Commonwealth of Australia nor does it permit the maternal grandparents from changing the place of residence of the child outside the greater metropolitan area of Sydney without the prior written consent of the mother.
The maternal grandparents are specifically empowered by these orders to be solely responsible to at any time apply for a new or renewal of an Australian passport for the child, which passport is to be retained and/or controlled by the maternal grandparents.
In the event that the maternal grandparents wish to take or send the child on an overseas holiday or permit her to go on an overseas trip, then they shall give the mother no less than 28 days in advance of the proposed departure date, together with copies of return airline tickets for the child, together with a copy of the proposed travel itinerary and address where the child will be staying.
Within 14 days from the date of this order the Independent Children’s Lawyer shall forward to the Secretary of the Child Protection Authorities in New South Wales a copy of the following documents:-
(a) these Orders;
(b) the Reasons upon which these orders are based;
(c) a copy of the Family Report dated April 2018 and;
(d) the report of Dr L dated 15 August 2018.
The Court requests that the Child Protection Authorities in New South Wales maintain an open file in relation to this matter, particularly in terms of any unsupervised time between the child and the mother given the concerns in relation to the mother’s mental health.
The child’s father is entitled to a copy or copies of final orders made 8 March 2019 and the anonymised reasons on which they are based.
The child’s father is restrained from accessing the Court file either electronically or manually without the leave of a judge of the Family Court.
The child’s mother is restrained from providing to the child’s father a copy of the reasons for judgment which have not been anonymised in these proceedings
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.
All extant applications are dismissed.
Leave is granted for the matter to be relisted on 7 days’ notice for the giving and taking of undertakings by putative supervisors. Such leave to operate for 6 months from the date of these orders.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same
IT IS DIRECTED
A copy of these reasons be forwarded by a Registrar of the Family Court to the Attorney General of the Commonwealth of Australia asking him/her to consider whether to make representations to the Attorney General of Queensland for amendments to ss 18-21 of the Supreme Court Library Act 1968 (Qld) to enable sentencing remarks to be made readily available to Federal Courts.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage Senior Counsel and Counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wragge & Wragge and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBC 293 of 2017
| Mr Wragge |
First Applicant
And
| Ms C Wragge And Ms Wragge And Mr Garnier |
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
This is a proceeding relating to the parenting arrangements for K Wragge-Garnier, aged 12 (‘the elder child’) who is the child of Ms Wragge (‘the mother’) and Mr Garnier (‘the elder child’s father’).
These proceedings were commenced by the elder child’s maternal grandparents Mr Wragge (‘the maternal grandfather’) and Ms C Wragge (‘the maternal grandmother’) (collectively ‘the maternal grandparents’).
These proceedings were run in parallel to proceedings relating to the elder child’s younger sister (‘the younger child’) who is aged seven. The mother in the proceedings involving the elder child is also the younger child’s mother. She and the elder child’s father are the respondents in these proceedings.
The elder child’s father is serving a term of imprisonment following his conviction for a serious crime some years ago. He did not participate meaningfully in these proceedings, but proved short evidence that, in his opinion, the mother was a good parent and that he supports an order that the elder child live with the mother. Due to his incarceration, he has not seen either the mother or the elder child for about 10 years.
The substantive dispute was whether the child live with the maternal grandparents or the mother in the context of allegations that the mother may prove to be an unacceptable risk to the child if left in the mother’s unsupervised care.
These proceedings are run in parallel to proceedings relating to the younger child.
The elder child’s father is incarcerated in Queensland. As a consequence the representatives for the parties in these proceedings and the proceedings for the younger child were concerned that information regarding the younger child may come to the notice of the elder child’s father and given his established history of extreme violence, all of the parties were concerned about details of the younger child coming to his attention or those of his associates or peers. Steps were taken to exclude details of the younger child and her family from the elder child’s father.
These are complex parenting proceedings. The elder child and the younger child have been brought up together since the younger child’s birth in late 2011. They are emotionally close to each other despite there being about a six year difference in age. The elder child is currently in year 8 at a high school in Sydney. The younger child is at a primary school in Sydney.
The case for the mother in relation to the elder child is:-
(a)The mother have sole parental responsibility for the elder child;
(b)The elder child live with the mother;
(c)The elder child spend time with the maternal grandparents at such times as agreed with the mother;
(d)The elder child be permitted to travel internationally without the need for consent by the elder child’s father;
(e)The mother be at liberty to sign passport applications and renewal of passport applications for the elder child without the consent of the elder child’s father;
(f)The mother is to use her discretion as to whether to pass onto the elder child any communications received from the elder child’s father;
(g)The child’s surname be regularised to exclude the elder child’s father’s surname.
The case for the maternal grandparents in relation to the elder child is that:-
(a)The elder child live with them;
(b)they have sole parental responsibility in respect of the elder child subject to;
(i)providing the mother with no less than fourteen (14)[1] days notice in writing of any such proposed decision; and
[1] In the context of this proceeding I determined that 14 days was too long a period to make a child wait, inter alia, medical.
(ii)the maternal grandparents are to consult with the mother by email or text communication unless they elect to communicate by phone or in person with regard to any such proposed decision and make a genuine effort to give consideration to the maternal grandparent’s expressed views and, should the relationship between the parties permit, make a genuine effort to reach agreement about any such proposed decision;
(iii)in the event that no agreement is reached between the parties, the maternal grandparents shall make the final decision and within fourteen (14) days of so doing, provide the maternal grandparents with written confirmation of the decision noting that email or text message is sufficient.
(c)the mother spend time with the elder child as mutually agreed, jointly or severally, subject to such time being supervised by either them or the mother’s sisters, and brother upon them giving appropriate undertakings to the Court;
(d)the mother spend time with the elder child on special occasions such as Christmas Day, Easter, the elder child’s birthday, Mother’s Day and the mother’s birthday;
(e)they facilitate and encourage communication between the mother and the elder child, by telephone, Skype or FaceTime, at all reasonable time;
(f)they be able to use their discretion in passing to the elder child any communications from the elder child’s father;
(g)The surname of the child is to be changed to exclude that of the elder child’s father.
(h)The maternal grandparents must notify the mother as soon as practicable if the elder child should suffer any illness or injury requiring hospital admission, such notification to include the address and telephone number of the hospital;
(i)The elder child be permitted to travel internationally as provided by s 11(1)(b) of the Australian Passport Act 2005, and for this purpose the maternal grandparents jointly are permitted at any time to apply or reapply for the issue of an Australian passport to the child, which is to be retained by them;
(j)In the event that the maternal grandparents wish to take the child on an overseas holiday or enable her to travel overseas, then the maternal grandparents shall be permitted to travel provided the maternal grandparents give no less than twenty (28) days in advance of the proposed departure date, provide to the mother copies of return airline tickets for the maternal grandparents and the child, together with a copy of the proposed travel itinerary and address where the child will be staying.
The maternal grandparents, the younger child’s father and the Independent Children's Lawyer have expressed serious concerns about the capacity of mother to parent the child.
The younger child is aged seven and has shared her life so far with the elder child. The father of the younger child father sought no parenting orders in regard to the elder child, given her age and clear preference to live with the maternal grandparents. If an order was made that the younger child live with her father it would mean that these sisters would be separated, with one living in Sydney, NSW and the other in Hobart, Tasmania.
A single Independent Children's Lawyer was appointed to represent the interests of both children. Fortunately, each of the parties (other than the elder child’s father) were legally represented. To the extent that the mother was assisted by Legal Aid, I thank the relevant Legal Aid Commission/s.
This Court had considered consolidating these two proceedings. However, the effect of that course would have been to open the file in relation to the young child and her life to the elder child’s father. Given the safety concerns raised by the parties to these proceedings and the Independent Children's Lawyer, the proceedings were run in parallel. Given the powers under Division 12A of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) and the consent of the parties who participated all of the evidence was heard at the same time and was evidence for each of the cases.
A single expert psychiatrist was appointed, Dr L (‘the single expert’). He provided a report[2] and evidence which was used in both proceedings.
[2] Exhibit E22.
In December 2017 there were concerns about the mother’s mental health and the safety of the children in her care, and a recovery order was made for the younger child. These orders provided that the younger child live with her father and orders were made for the protection of the elder child. The mother fled with the children and tried to hide from the operation of the recovery order insofar as it related to the younger child.
On about 17 January 2018 the younger child was recovered and placed into the care of her father. The elder child went with the younger child, with the consent of the mother. The elder child was voluntarily returned to the care of the maternal grandparents and the mother in late January 2018.
On 2 February 2018 there was an interim hearing and the younger child was placed essentially in the care of the mother and the maternal grandparents, and orders were made for the younger child to spend time with the father. The matter was listed for final hearing in May 2018.
BACKGROUND
The general background was set out in the case outline prepared by the father of the younger child’s counsel. It contained the following:-
1953 Maternal grandfather born. 1956 Maternal grandmother born. 1982 Mother born. 1983 Father of the younger child was born. 2006 The elder child is born. 2009-2010 Mother and father of the younger child commence a relationship in Sydney. 2011 The younger child is born. 2014 Mother alleges the family were evicted from home because of father of the younger child. June/July Father of the younger child alleges mother threw a glass bottles at him whilst he was holding [the younger child]. November 2016 The parents’ of the younger child have their lease ended.
Mother alleges separation from the father of the younger child.[3]Christmas/New Year 2016-17 Maternal grandmother alleges the elder child showed her a bruise and said it was caused by the father of the younger child. 6 January 2017 The mother and father of the younger child move to Tasmania and stay with paternal relatives. The younger child enrolled at local Infant School and the elder child at a local Primary School. January 2017 Father of the younger child alleges mother hit him whilst he was driving 30 January 2017 Mother returns to Sydney with the younger child and the elder child, telling father of the younger child it was to simply collect a car. Stays with her parents. Enrols girls at a school at Sydney. Girls attend for one week (mother says two weeks). Mother then has fight with her mother and moves to P Town, NSW with the children. 27 February 2017 Father of the younger child secures employment in Tasmania Saturday 18 March 2017 The mother and father of the younger child and the children return to Tasmania, after father of the younger child flies up to collect them. 21 March 2017 Date of separation according to the father of the younger child. Mother leaves the paternal grandparents’ home with the children. 21-27 March 2017 Mother and children living in mother’s car and various hotels in Hobart. 24 March 2017 Initiating Application filed by father of the younger child in Federal Circuit Court. 27 March 2017 Mother and the children fly to P Town and then on to Sydney. 17-26 April Mother returns to Hobart with the younger child unannounced. Mother starts pressing father of the younger child for a reconciliation, including in the presence of the children. 25 April 2017 Mother alleges father of the younger child again physically forces her and the children out of house.[4] 29 April 2017 (or 30 April) Mother returns to Tasmania (without children) unannounced. Threatens to drive into a power pole. Police called. 2 June 2017 Child Dispute Conference Memo created by family consultant Ms Q. Mother (by phone) tells Ms Q that physical violence occurred “a couple of times during the relationship.” 23 June 2017 Mother arrived in Hobart (with the younger child) unannounced. 28 June 2017 Interim order made providing for Father of the younger child’s time and communication with the younger child. 11 July 2017 Mother fails to facilitate changeover at Sydney airport on 11 July 2017. Once father of the younger child arrived at Sydney the mother advised she was driving down from P Town. Father of the younger child returns to Hobart without the younger child. September /October school holidays 2017 Father of the younger child due to collect the younger child from Sydney for a five day period. Mother instead demands father of the younger child pay for fares for her and the children to travel to Tasmania and drives to Tasmania. Mother advises father of the younger child she would be remaining in Tasmania. 1 October 2017 Mother berates and abuse father of the younger child at his workplace for 50 minutes in children’s presence. 6 October 2017 Child Inclusive Conference Memo created by a family consultant. Mother confirms to a family consultant she seeks reconciliation and relocation to Hobart. Father of the younger child directly rejected reconciliation to the mother in the presence of a family consultant. Mother alleges to a family consultant that the father of the younger child slept in his parents’ bed naked and asked the younger child to join them.[5]
A family consultant noted the father of the younger child as being “calm, child-focussed, authoritative parenting style” and his “warm familiar relationship” with the younger child. She noted the mother’s “high level of attunement” to the younger child and an “educative, positive parenting style.”6-10 October 2017 The younger child spends four days with the father after intervention of a family consultant. Father of the younger child receives 199 text messages from the mother during this time. 12 October 2017 Father of the younger child contacted Independent Children's Lawyer regarding his concerns of [the younger child] being homeless and not in school. 17 October 2017 Father of the younger child notifies Child Safety about the younger child’s situation. 18 October 2017 Mother makes threat to kill herself amidst 41 text messages to the father of the younger child in which she employs an avalanche of profanity including referring to his “sicko evil parents,” “sick fuck Mother,” sadistic evil bitch, 3 sadistic psychopaths, and repeatedly called him a “cunt, backstabbing dog, gutless pathetic cunt”. She repeatedly demands the father of the younger child take the children from her.
The mother’s abusive texting on this day is replicated on most days to varying degrees.[6]25 October 2017 Father of the younger child files interim application to have the younger child live with him. Independent Children's Lawyer files application requesting Child Safety to intervene. 3 November 2017 Mother advises Court that she is now in New South Wales and children re-enrolled at school. Matter transferred to Family Court. Early November 2017 Mother returns birthday present sent to the younger child from the father of the younger child. November /December 2017 Mother advises father of the younger child she is not living with her parents 11-15 December 2017 Mothers barrage of concerning text messages to father of the younger child continues 21 December 2017 Recovery order made. Father of the younger child attends Sydney until 24 December whilst Police attempt to recover the younger child. 5 January 2018 Father of the younger child seeks location order. Court also orders paternal grandfather to advise of mother’s whereabouts if became known to him. 17 January 2018 Mother located and recovery order enforced. Mother subsequently conveyed by police to a hospital. Children commence living with father of the younger child after Police and mother insisted the elder child accompany them. Children travel with almost no clothes or personal belongings. 20 January 2018 Father of the younger child facilitates birthday calls for the elder child. The elder child spends her birthday at Play Centre Inflatable World and is taken out for a meal with her cousins. 21 January 2018 Paternal grandfather speaks to maternal grandfather who agrees to let the paternal grandfather know of the elder child’s return flights. Flight details not received by paternal grandfather and follow up messages to paternal grandfather which went unanswered. 27 January 2018 The aunt of the father of the younger child, Ms B gives the elder child a birthday event. 30 January 2018 The elder child returns to Sydney after the parties and the children had seen Ms Q.[7] 2 February 2018 Interim hearing: Court ordered that the younger child live with mother at paternal grandparents' home. 24 February 2018 Mother takes the younger child from maternal grandparents’ home. Order requires grandparents to at all times supervise. No steps taken by grandparents to recover the younger child. Mother returns the younger child following day. 27 February 2018 Mother advises father of the younger child that she has been kicked out of the maternal grandparents’ house. 28 March 2018 Mother attempts to remove the younger child from maternal grandparents, the maternal grandfather resists and prevents that attempt. Police attended home. The younger child is present for part of that time. 29 March 2018 Mother advises father of the younger child that the maternal grandfather has assaulted her. Maternal grandfather says that the younger child had to be sent next door due to mother arriving at his home and having to ‘calm her down’. The younger child then sent to aunt E’s to stay. 30 March – 7 April 2018 The younger child spent time in Hobart. Prior to visit mother calls Tasmania Police to check the younger child in Hobart when the younger child is not there. 9 April 2018 Mother advises father of the younger child that her parents will not let her see the children or speak to her. 15-22 April 2018 The younger child spends time in Hobart. 20 April 2018 Family Report prepared. May 2018 Hearing commences. 1 June 2018 Mother intercepted by police and found driving a motor vehicle with and excess of alcohol in her system. 20 June 2018 – 29 September 2018 Vile and awful text messages by the mother to the father. August 2018 Mother pleads guilty to drink driving and her licence is suspended for 1 year. From March 2018 to August/September 2018 Mother does not see the children.
[3] Mother’s affidavit filed 30 March 2017 paragraph 2.
[4] Ibid at 8.
[5]I have determined on the evidence that this did not occur.
[6] These allegations by the mother are either delusional or fabricated.
[7] There was an issue as to whether the elder child returned to Sydney that day or had returned to Sydney a few days before. Nothing much swung on that difference.
This matter was listed for hearing for three days commencing 16 May 2018. In the month preceding the hearing the position regarding the elder child, and the younger child, became of greater concern given the mother’s attempts to take the younger child contrary to the interim orders that were made in February 2018.
As such after submissions, interim orders were made that the children live with the maternal grandparents and that the maternal grandparents have parental responsibility when the children are in their care. That provision was put in place to ensure that if any endeavour was made by the mother to remove the younger child from the maternal grandparents, there was clear authority for the maternal grandparents to retain that child.
The May 2018 trial commenced and was run concurrently with the proceeding in respect of the elder child. The two sets of proceedings were adjourned part heard to November 2018.
Leave was given for the mother to call any updating evidence and the maternal grandparents sought to file documents setting out any changes to their evidence following their trial affidavits.
The mother did not wish to attend the May 2018 hearing in person and sought to attend and give evidence by video-link. Given the mother’s fragile emotional and/or psychological condition, leave was given in that respect.
The mother wished to attend the interview with the single expert psychiatrist, in R Town, by video-link or telephone. I was not satisfied that this would enable a detailed report to be made available and as such I directed the mother to attend personally. I noted that the maternal grandparents would provide airfares to and from R Town and one night’s accommodation for the mother if necessary.
The draft orders in respect of the children were set out in Exhibit E27 (the orders sought by the maternal grandparents in respect of the elder child) and Exhibit E28 (the proposed orders by the father of the younger child in respect of the younger child). These orders were the subject of agreement between the father of the younger child and the maternal grandparents except for order 5(a) regarding the extent of mid-term holiday periods and an interim determination was made in that respect.
The mother sought the orders set out in her amended response which was substantially that the children live with her and spend limited supervised time with the father of the younger child being those contained in orders 1, 2, 3(a), 4, 5, 6, 7, 8(a), 8(d), 8(f), 9, 10, 11, 12, 13, 14, 15, 17, 22 and 26. She varied this approach, in relation to the younger child, in her further response filed 1 November 2018.
The mother’s application for orders was unsuccessful.
In these reasons any statement of fact is to be regarded as a finding of fact unless it is a clearly not given the context of the statement.
The mother was represented by competent counsel and solicitor throughout the hearing. However, the mother struggled to participate in the hearing. In the May 2018 hearing days she attended by video link.
In the five additional days of hearing in November 2018 the mother initially attended in person, including the giving of evidence in person. The mother requested that the father of the younger child and paternal grandparents not be present in court when she was giving evidence. Naturally, the Court facilitated this request and arrangements were made for the father of the younger child and his family to view the proceedings from a video link, but without a reciprocal link of him back into court. This was to allow the mother to give evidence without the father of the younger child being present or visible to her.
At one stage the mother sought that the father of the younger child’s barrister also be excluded from the court room. Given the need for procedural fairness that request was denied.
To her credit the barrister for the father of the younger child conducted the cross-examination of the mother in a sensitive and non-confrontational manner. The mother’s evidence was completed on Wednesday 7 November 2018. The following day the Court was informed that the mother had returned to Sydney and sought to attend by telephone link. That request was accommodated and endeavours were made for that to occur. However, the telephone link to the mother’s mobile telephone was tenuous and noisy. Endeavours were made to connect the mother via a land-line or better telephone service, but that did not succeed. The mother’s counsel indicated that the mother had decided not to pursue attending by telephone and further that she (the mother’s counsel) had sufficient instructions to complete the matter.
THE LAW
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(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;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
The House of Lords in J v C in [1969] 1 ALL E.R. at page 824 Lord MacDermott said, when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration, the following:-[8]
3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights however, remain, qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbin, L.J. in re: O’Harra [1900] 2 I.R. at page 240
4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance. For all I know that may have been true in some cases containing dicta to that effect. But I think a growing experience has shown that it is not always so and that serious harm even in young children may, in occasion, be caused by such a change. I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.
[8] Page 824.
These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.
The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.
The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per se. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-
25. In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
26. Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The Full Court in Yamada & Cain (supra) went on to conclude:-
27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
I will endeavour to apply the principles of law to the facts.
THE EVIDENCE
The father of the younger child relied on the following documents:-
(a)an Amended Initiating Application filed 27 April 2018;
(b)his Affidavits filed 27 April 2018 and 30 October 2018;
(c)an Affidavit of Ms J filed 27 April 2018;
(d)an Affidavit of the younger child’s paternal grandmother Ms S Lucas filed 27 April 2018;
(e)an Affidavit of the younger child’s paternal grandfather Mr T Lucas filed 27 April 2018;
(f)an Affidavit of Ms B dated 8 May 2018, the paternal great-aunt; and
(g)an Affidavit of Dr U dated 15 May 2018, the medical practitioner of the younger child’s father.
The father of the younger child also tendered a bundle of books comprising of two volumes.
The mother relied on the following documents:-
(a)an Amended Response to initiating application filed 14 May 2018,
(b)her Affidavits filed 11 May 2018 and 24 October 2018;
(c)an Affidavit of Ms D filed 10 May 2018; and
(d)an Affidavit of Mr G filed 11 May 2018.
The maternal grandparents relied on the following documents:-
(a)Affidavits by maternal grandfather filed 10 and 27 April 2018, 31 October 2018;
(b)Affidavits of maternal grandmother filed 27 April 2018 and 30 October 2018;
(c)joint Affidavit of maternal grandparents filed 1 February 2018; and
(d)an Affidavit of the elder child’s maternal aunt Ms E Wragge, filed 1 May 2018.
The Independent Children’s Lawyer relied on the following documents:-
(a)Child Dispute Memorandum dated 2 June 2017;
(b)Child Inclusive Memorandum dated 6 October 2017;
(c)Child Responsive Program Memorandum prepared 30 January 2018;
(d)Family Report dated 20 April 2018;
(e)Response to Section 67ZA Notification;
(f)Report to a Child Protection Case Worker dated 2 February 2018;
(g)Report from Ms Y, Psychologist dated 31 January 2018;
(h)Undertaking from the mother dated 30 January 2018;
(i)Affidavit of Mr Z sworn 20 October 2017;
(j)Affidavit of Ms AA sworn 31 October 2017; and
(k)Single Expert Report of Dr L dated 15 August 2018.
The Independent Children’s Lawyer, the father of the younger child, the mother and maternal grandparents each filed case outlines.[9] The case outlines are in evidence as to what the parties submitted but are not evidence of the facts asserted in them except, where the chronologies are consistent.
[9] Exhibit E8 (ICL’s case outline), Exhibit E9 (father’s case summary), Exhibit E10 (mother’s case outline) and Exhibit E11 (maternal grandparents).
Also tendered were the annexures to the maternal grandfather’s affidavit,[10] the exhibits to the maternal grandmother’s affidavit[11] and the exhibits to the mother’s affidavit.[12]
[10] Exhibit E14.
[11] Exhibit E15.
[12] Exhibit E16.
The Child Dispute Conference Memorandum dated 2 June 2017, the Child Inclusive Conference Memorandum dated 6 October 2017 and the Child Responsive Program dated 30 January 2018 were tendered.[13] The Family Report dated 20 April 2018 was also tendered.[14]
[13] Exhibit E18.
[14] Exhibit E17.
Dr U
The father of the younger child filed an affidavit by Dr U on 16 May 2018. Exhibited to that affidavit was a report from Dr K Y dated 14 May 2018.[15]
[15] Exhibit E13.
The evidence of Dr U was admitted without controversy and neither counsel for the mother, the paternal grandparents or the Independent Children’s Lawyer sought to cross-examine Dr K Y.
In his report Dr U said he had undertaken a liver function test which showed that the father of the younger child had a fatty liver which was significant given the weight of the father of the younger child. Since that time the father of the younger child has reduced his weight slightly and his liver function test has improved and normalised.
Dr U observed of the father of the younger child:-[16]
…There is no clinical evidence of chronic alcoholic liver disease, and his normal liver function test exclude excessive alcohol consumption …
Clinically [the father of the younger child] has no evidence of chronic alcoholic liver disease, no evidence of hepatomegaly and there are no peripheral stigmata of alcoholic liver disease. …
[16] Ibid.
The father of the younger child has undertaken three such tests.
I accept that evidence and I have taken it into account.
The father of the younger child
The father of the younger child gave evidence in terms of the affidavits upon which he relied. The father of the younger child provided a tender bundle.[17]
[17] Exhibit E12.
He gave oral evidence in chief denying that he spent significant time at work in Suburb DD. He denied that he engaged in heavy drinking and/or extensive gambling after work. He denied that he was violent to the mother or the elder child as alleged. The father of the younger child denied that he walked around the house naked as asserted by the mother.
He acknowledged the email from his mother on 29 October 2012.[18]
[18] Exhibit E16 pages 12 and 13.
He was cross-examined in relation to this, which on the surface seemed quite a pleasant and conciliatory email.
The father of the younger child conceded that he was working long hours in 2012 and he acknowledged that the mother asked him to drink less over that period of time.
I accept his evidence that he now drinks alcohol less frequently.
The father of the younger child was cross-examined in relation to his expenditure on gambling and alcohol as shown from his bank records from July 2015 until July 2017.
He said that during the relationship money was not a source of tension, but it was a concern of the parties whatever that means. He said that he and the mother had wanted to move to Hobart to buy their own home, as the cost of housing in Hobart was more affordable than in Sydney.
He said he had been in arrears of rent for one property at Suburb DD, but it was far less than the $5,000 that was asserted.
The father of the younger child was not aware of the issues regarding the younger child which were referred to in a plan provided by a general practitioner.[19]
[19] Exhibit E20.
It was put to him that the mother’s mental well-being had improved in November 2018 and the father of the younger child said that whilst that was the view of Ms Y, the mother’s psychologist,[20] that was not his experience of the mother at that time.
[20] Exhibit E21.
It was the father of the younger child’s case that the parties’ relationship was in difficulty and they came to Tasmania in early 2017 to find accommodation. He said that when the mother came to Tasmania from time to time he normally tried to provide accommodation for her, but on one occasion he was not able to do so.
In terms of the maternal grandparents, the father of the younger child conceded in cross-examination that he had no serious concern for the well-being of the two children in their care. He confirmed this in the light of the evidence that the maternal grandparents are likely to secure an apartment for the mother for at least six months and that they had no intention of allowing the mother to re-occupy their home and would not allow her to re-occupy their home. The maternal grandfather was not strong on this point or the next.
This would also be on the basis that the maternal grandparents had no intention of allowing the mother unsupervised contact with the children without order of the Court.
The father of the younger child has limited concerns that the maternal grandparents would not preserve his relationship with the children. He said that they had refused his offer of child support and provided little feedback to him about the life of the younger child. The communication between the maternal grandparents and the father of the younger child was poor and often through on of the mother’s sisters.
The father of the younger child was very concerned in relation to the maternal grandparents in a number of other areas.
He did not believe that they were sufficiently concerned about the mother’s mental health and the impact of that upon her parenting. In that regard the maternal grandparents said to Ms V, the family consultant, that they proposed that the younger child live with them until the mother is in better mental health at which time, the younger child would then live with her. I am satisfied that this was and perhaps is the view of the maternal grandfather, but it is not the view of the maternal grandmother.[21] Later in the report[22] it is said that it seemed evident that the maternal grandparents believe they are best placed to know when their daughter is well enough to care for the younger child. In that regard the maternal grandfather sees the mother through ‘rose coloured glasses’ but the more realistic view of the mother and her behaviour and heath is that of the maternal grandmother, about which I have discussed elsewhere in these reasons. As such the father of the younger child’s concerns about the maternal grandparents are reasonably based.
[21] Exhibit E 17 Family Report paragraph 9.
[22] Ibid paragraph 49.
Similarly the father of the younger child was concerned that the maternal grandparents may allow the younger child to have unsupervised time with the mother. He was concerned that the maternal grandparents were ‘surrogates’ of the mother, and provided her health improved the younger child would be returned to her. That is a reasoned and valid concern about which I considered in this determination. In that regard the maternal grandmother is far more sceptical about that occurring and is much more insightful in terms of the mother’s mental health and her manipulation of the maternal grandfather. The father of the younger child believed that at least in the medium or long term that the younger child would be better off in his care.
The father of the younger child is not sanguine about the protection provided by the maternal grandparents in respect of the younger child during late 2017 and early 2018.
The father of the younger child was cross-examined in relation to his concerns that the maternal grandparents may not be able to manage the mother. This was set out at paragraph 37 of the Family Report:-
37. [The father of the younger child] presented his information in a clear and calm manner. [The father of the younger child] believes that the maternal grandparents “mean well… they are good people” in relation to their application to care for [the younger child]. However he expressed concerns that the grandparents are not consistently able to manage volatile behaviour of [the mother] in [the younger child’s] presence and they could be misguided in forming a future belief that their daughter is well enough to care for [the younger child].
The father of the younger child made it clear that whilst he was prepared to care for the elder child he made a conscious and considered decision not to seek parenting orders in relation to her.
He confirmed what he said to Ms V the family consultant:-[23]
13. [The mother’s] alleged threats that she would commit suicide.
[23] Ibid paragraph 13.
The first time the father of the younger child had the sole full time care of the two children following separation in late March 2017 was for the one to two weeks in about January 2018. The father of the younger child conceded the comment made by him in the Child Responsive Memorandum of 30 January 2018 where he said:-[24]
… he is not seeking that [the elder child] live with him. He stated that if the authorities decided that [the elder child] should be placed in alterative cate, he may revaluate (sic) whether he can offer [the elder child] care. He said he is aware of the problems for both children of them being separated but defined himself as “not [the elder child’s] father”, as if to say that [the elder child’s] well-being is not his responsibility.
[24] Exhibit E18 Child Responsive Memorandum dated 30 January 2018.
When the matter came back to Court in November 2018 the father of the younger child relied on a further affidavit filed 30 October 2018. In that affidavit he provided evidence of his time with the younger child. In addition he provided some information regarding his personal circumstances, which are that he is now a manager in hospitality. He also disclosed that he had been working as a driver for the last twelve months or so.
The father of the younger child also set out information in relation to email communication with the maternal grandparents and his interaction with the younger child’s school.
The father of the younger child complained in his later affidavit that the younger child was not able to have sleepovers with her peers while in the care of the maternal grandparents. I have dealt with that later in these reasons. He provided evidence of his personal circumstances.
What is troubling is that in the earlier hearing the father of the younger child made it clear that he would be staying almost indefinitely at his parents’ home if the younger child came into his care. When cross-examined in the November 2018 hearing he said he would be remaining at his parents’ home for six weeks to six months. Accordingly, I am left with the circumstances where he will be living close to his parents, but he and the younger child will soon be living in a separate home.
When cross-examined by senior counsel for the maternal grandparents, the father of the younger child was asked why he had not travelled to Sydney to spend time with the children. The father of the younger child provided a considered and sensible explanation in answer to that question in that he was not anxious to go to Sydney as he wanted to spend his holiday leave with the younger child in Tasmania.
He was pressed as to whether he really wanted the elder child to attend the holiday events. The father of the younger child made it clear that he did, but did not wish to unnecessarily press the issue. He said in evidence that the elder child seemed to be thriving and happy, as was the younger child.
The father of the younger child was cross-examined as to his knowledge that the maternal grandfather does not communicate by emails or text messages. The father of the younger child acknowledged this, but said that all of the emails went to the maternal grandmother.
The father of the younger child had no issue with the evidence of the single expert in relation to the material the father of the younger child provided to him.
The father of the younger child has been in contact with the younger child’s teacher. There is a level of exaggeration by him in terms of some issues regarding the younger child’s education. She is clearly thriving at the school she is attending.
In terms of the younger child’s interaction with the elder child if the younger child were to live with him, the father of the younger child said that he would try and manage that through FaceTime and would arrange for the younger child to see her sister during school holidays.
The father of the younger child conceded that the two children had a close sibling relationship. This was set out in the Family Report at paragraph 55, which I accept and it provides evidence:-
[The father of the younger child] volunteered that [the children] have a close sibling relationship. However, [the father of the younger child] spoke about the age gap between the girls and his understanding that [the elder child] has played a “mothering role” to [the younger child] that could be more appropriately undertaken by a parent. He believes that as [the elder child] becomes a teenager, she will increasingly pursue activities independent of [the younger child] and her family generally. [The father of the younger child] spoke kindly about [the elder child]; he made practical suggestions about how the sibling relationship could be maintained in the event that the girls do not live together. [The father of the younger child] reported that in January 2018 he had willingly cared for [the elder child] at the request of Child Safety Services when [the elder child] was present at the time that [the younger child] was returned to his care subject to the recovery order.
In that respect I note that the father of the younger child says he undertakes the care of the younger child during the time and that he has the opportunity of reducing his work hours. He proposes, at least for the foreseeable future, to live with his parents where the rent is modest; he pays $100 per week rent and perhaps $100 a week towards food.
The father of the younger child gave some description of the chaotic events following their departure from their rented property in about October 2016. They lived in the EE Area and in P Town. He said that the elder child was left with the maternal grandparents and the mother took the younger child. He said they spent two or three nights in motels.
On 6 January 2017 father of the younger child and mother moved to Tasmania to live with the paternal grandparents whilst they arranged their own accommodation. They were to be there for a period of time, then to house sit at a home of a sibling, then shared the home with the paternal grandparents.
The father of the younger child was cross-examined in relation to an incident on about 24 January 2018 when arrangements were made for the urgent return of the elder child to the care of the maternal grandparents. The paternal grandmother expressed concerns about the level of physical maturity of the elder child, and the father of the younger child said that this was in the light of the false allegations made by the mother which had been consistent for some time.
The father of the younger child gave evidence that he lost a lot of money in the business in Suburb DD, including a bond of about $60,000 which was provided by his parents. He conceded that there were funds paid by the maternal grandparents, but there is an issue as to the quantum of those funds.
The father of the younger child was cross-examined as to the level of support he provided for the younger child. Since she has returned to the care of the maternal grandparents he has not offered money on the basis that he believed the maternal grandfather would not accept it. He prevaricated in answers in this respect.
The father of the younger child conceded that there were no difficulties with telephone calls to the younger child, although he said he was endeavouring to organise Skype or FaceTime, but this had not worked so far.
Given all of the evidence, I am satisfied that the maternal grandparents have facilitated the father of the younger child’s time with the younger child and that they are likely to do so in the future.
The father of the younger child has not sought time with the children in Sydney given that he does not have the availability of support as he does in Hobart and given his limited financial resources.
The father of the younger child was cross-examined in relation to his level of alcohol use. His evidence was that it was moderate down to nil, and now he occasionally has a drink, perhaps one or two glasses a week or a fortnight.
He was cross-examined in relation to statements made by others and did not change his evidence. He conceded that he was drinking a bottle of wine four nights per week when he spoke to the family consultant in June 2017.[25]
[25] Exhibit E18.
Given the level of his answers to these questions and the purchases from the bottle shop I am satisfied that the father of the younger child has, at some levels, understated his alcohol use.
The father of the younger child was cross-examined in relation to his hobby of gambling. Given the material before the Court it is clear that the father of the younger child has been a regular user of gambling facilities and has at times gambled significant funds, such as in November 2017.
I have had regard to the bank statements and the analysis in the relevant exhibits being Exhibit E23 and Exhibit E24.
In terms of separation, he said the mother asserts it occurs in November 2016. The father of the younger child denies this and says that while the relationship was not good it continued until about 21 March 2017. The father of the younger child said he and the mother travelled to Tasmania on 6 January and shortly after that time the mother returned to New South Wales to collect a car and personal possessions. He said it was only after she went back that he started receiving calls and messages about her concerns about being in Tasmania.
The father of the younger child denied that he was ever threatening; he said he was always gentle.
As to the father of the younger child’s time with the elder child, he said that she would spend sometimes two or more nights per week with the paternal grandparents and that they were fantastic for the younger child. He said that the paternal grandparents shielded the elder child from the stressors of the mother and father of the younger child’s arguments.
He denied that the younger child spent significant time with the paternal grandparents, although said she spent regular time with the maternal grandparents.
The mother returned to Tasmania on about 18 March 2018 then left again on 27 March 2018. The father of the younger child commenced proceedings in the meantime and then on the advice of a solicitor sent a letter asking her not to take the children out of the State. The father of the younger child and mother had enrolled the children in schools, but the mother prevaricated in terms of school uniforms and the like.
The mother travelled up and down from P Town on a number of occasions and eventually arrived in Hobart on about 17 or 18 April 2013. There was an issue as to whether she notified the father of the younger child. The father of the younger child said the mother was more concerned about reconciliation and that he said he would contemplate it provided she had proper psychiatric and psychological assessment and treatment.
The mother left Tasmania on 26 April 2017. At that time she was begging for reconciliation. At that time the father of the younger child did not believe the children were at risk, notwithstanding having filed the Notice of Risk. On 29 and 30 April 2017 the father of the younger child said the mother returned with the children and it was during that time that she threatened to drive into a power pole.
The father of the younger child said the mother had often threatened to harm herself by way of coercion or manipulation, but as 2017 progressed the father of the younger child said that because of the volume and nature of text messages he received from the mother he was concerned that there may be some substance to them.
In the first part of 2017, after separation, when the children were presented to him they presented as being hungry and not well groomed. He said that the younger child seemed emotionally ‘needy’ and her behaviour had regressed. She seemed unsettled. He said this was because of the long drives, inadequate housing and inability to attend school.
The father of the younger child said after the orders were made in the Federal Circuit Court in June 2017 the children’s attendance at school became more regular and his concerns in that regard diminished, although he said that the mother seemed to become more erratic and more impulsive.
When the father of the younger child spoke to Ms Q in June 2017, he said residence was not in dispute, although his views changed over the next six months given the circumstances to which he alludes in his affidavit. The volume of text messages increased, as did the concerning nature of them.
After the orders were made the father of the younger child did not see the children in the following school holidays and in the September school holidays. In the Child Inclusive Conference Memorandum of October 2017 the father of the younger child expressed the view that he was considering whether the younger child should live with him. He was very concerned about the mother’s behaviour.
He had over the years raised issues concerning the children’s safety in the mother’s care with Child Protection in both New South Wales and in Tasmania.
In November 2017 Judge Baker of the Federal Circuit Court ordered that the younger child live with the maternal grandparents, attend school and made other protective orders. The father of the younger child was concerned, given the facts and circumstances quite appropriately, that the mother was not going to obey those orders.
In paragraph 17 of the Child Inclusive Conference Memorandum of February 2018 Ms Q, the family consultant, observed the condition of the younger child and said that she did not appear to be coached or apprised of the details of the dispute. The father of the younger child did not see the younger child as being sad or quiet, although he said she was clinging to him.
The father of the younger child described the mother’s texting over December 2017 as relentless and said that he was concerned that the maternal grandparents would not be able to protect the younger child from the mother. That concern continues. The father of the younger child does not accept that the maternal grandparents can stand up to their daughter.
However, the father of the younger child concedes that they are likely to be more vigilant following the events of 2017 and January 2018.
The father of the younger child is content that the maternal grandparents enable him to spend time with the children and that their promotion of the relationship is genuine and not fabricated. He would be concerned about the mother spending time with the children if she was not supervised.
In terms of parental responsibility, the father of the younger child says that he could work with the maternal grandparents, but would not be able to work with the mother. I accept that evidence.
The father of the younger child’s evidence was not overly compromised, except I am satisfied he has understated the extent of arguments between he and the mother, his drinking of alcohol and gambling when he and the mother cohabited, and the extent of time he spent at work. His evidence otherwise generally reliable, but coloured by his partisan views of his own case.
Maternal grandfather
The maternal grandfather, who is now aged 65, provided evidence in his affidavit of 27 April 2018 and his up to date affidavit of 30 October 2018. He is a tradesman and he lives in a southern suburb of Sydney.
In his affidavit of 27 April 2018 he sets out his personal information, including his relationship with the maternal grandmother and the wider family support available to them in the care of the children
He provides a background of his and his wife's involvement in the care of the elder child, which included financial and practical assistance while the mother and the elder child’s father were in a relationship. Once that relationship ended the maternal grandparents’ support of the mother continued and increased. The wider maternal family also assisted in taking the elder child to activities such as swimming and Nippers.
Following the commencement of the relationship between the mother and the father of the younger child and the birth of the younger child in 2011, the maternal grandfather asserts that the maternal grandparents paid the bond and advanced rent on a number of properties in which they lived. Further that, on occasion, they assisted in arranging the moving of furniture and the repair of the rental properties. His evidence is also that he at times paid the electricity bills and gave the mother and the father of the younger child money to meet expenses. I accept that evidence as reliable.
On the maternal grandfather’s affidavit evidence, the maternal grandparents have significantly assisted the mother in the care of the children since separation. When the mother and the children were residing with them they were involved in arranging and funding the children’s schooling, assisting with school drop off and pick up, and taking the children to church with them on Sundays. I accept that evidence as reliable.
The maternal grandfather also gives evidence of the close relationship between the children. He observed that the elder child has taken a ‘mothering role’[26] toward the younger child, and if they are separated the children will miss each other; he is concerned about the social and emotional impact if the younger child resides with the father of the younger child in Tasmania.
[26] Paragraph 246 of the maternal grandfather’s affidavit filed 27 April 2018.
The maternal grandfather details the mother’s movements with the children after the relationship between the mother and father of the younger child ceased as follows:-
·Late 2016 the father of the younger child relocated to Tasmania while the mother and the children moved in with the maternal grandparents.
·March 2017 the mother relocated herself and the children to P Town without advising the maternal grandparents in advance.
·The mother then travelled to Tasmania in March 2018 to again attempt to reconcile with the father of the younger child. She returned to New South Wales before the end of March 2018 and said to the maternal grandfather word to the effect, “[The father of the younger child] and I cannot make it work. I am going to stay in Sydney and live with you for now”.[27]
·July 2017 to October 2017 the mother resided in P Town.
·October 2017 the mother relocated back to Sydney, and she and the children resumed living in the maternal grandparents’ home. Subsequently in November 2017 orders were made that she remain residing there.
·November 2017 the mother and the children spent significant time at a property in Suburb FF, but the maternal grandfather still considered them to be living at the maternal grandparents’ home rather than the Suburb FF address.
·As of the time of the recovery order made by this Court in December 2017 the maternal grandfather was unaware of the precise location of the mother and children; he was in communication with her and encouraged her to return.
·On 17 January 2018 the children were recovered pursuant to that order and were removed from the care of the mother to the care of the father of the younger child in Tasmania.
·On 30 January the children again lived with the mother in the maternal grandparents’ home pursuant to interim orders made by this Court.
[27] Paragraph 71.
In his affidavit the maternal grandfather gives evidence of the mother’s desire to reconcile with the father of the younger child and of the mother’s ‘extreme distress’[28] concerning the end of her relationship when she was residing with the maternal grandparents in 2016. In response to this the maternal grandparents assisted the mother with her travel to Tasmania in January 2017 when she hoped to bring about such a reconciliation. It is also his understanding that the mother travelled to Tasmania in March 2018 for the same purpose. The mother told the maternal grandfather that the paternal grandmother was the reason which they could not reconcile. He sets out his response to this allegation at paragraph 186 of his affidavit:-[29]
I have tried to explain to [the mother] that the relationship is over with [the father of the younger child] and that her [sic] and [the father of the younger child] are adults who are capable of making their own decisions and that [the paternal grandmother] is not to blame. [The mother] refuses to agree with me on this.
[28] Paragraph 61.
[29] Filed 27 April 2018.
It is the maternal grandfather’s understanding that she has a support network in P Town from when she was studying at university and that the P Town area is also where the elder child’s paternal family resides; this is why the mother has returned there twice with the children. He reports that when the mother moved to P Town in July 2017 he did not have concerns for the mother’s mental state or for her care of the children, and that in fact she was initially happy and settled there. However, this did not last. The maternal grandfather deposes:- [30]
…I became aware that the situation between [the mother], [the father of the younger child] and his family was starting to spiral out of control and was having a significant impact upon [the mother]. [The mother] called me most days, upset and frustrated. …
[30] Paragraph 91 of his affidavit filed 27 April 2018.
In September/October 2017, at around the time of the Child Responsive Program interviews, the maternal grandfather encouraged the mother to relocate back to the maternal grandparents’ home with the children in a conversation which he recounts at paragraph 97:-
[The mother] did not know what to do. She called me around September 2017 and said, words to the effect, “Dad I don’t know what to do. They won’t leave me alone. It’s too stressful. I want to stay here but they won’t leave me alone”. I said, words to the effect, “Come home and get the kids back into school here. We will help you”… [original emphasis]
Shortly after that the mother did relocate back to the maternal grandparents’ home with the children, and the maternal grandfather states that he was aware that under an interim order made in November 2017 she was to remain residing there. He was also aware that if the mother were to leave with the children the maternal grandparents had to inform the Independent Children’s Lawyer.
As I have noted, the maternal grandfather did not consider that the mother travelling to Suburb FF constituted a change of address as on his evidence she and the children returned to the maternal grandparents’ home each night.
The maternal grandfather did not have concerns about the mother’s mental health during the relationship between the mother and the father of the younger child, and similarly he was not concerned about her ability to care for the children. At the time of composing the affidavit his apprehension was that the mother did “not admit to herself that she has any mental health issue.”[31]
[31] Ibid paragraph 183.
On the maternal grandfather’s account, the mother disclosed to him in March 2018 that the father of the younger child had sexually and physically abused her and he encouraged her to report it to the police. Prior to this in January 2017 the mother reported to the maternal grandfather that the father of the younger child had sent a photograph of a naked man to the elder child’s mobile telephone. This it seems arises out of a photograph sent of the husband’s present employer in a state of undress. It seemed to me to be a minor mater of little consequence.
As to the father of the younger child’s use of alcohol, the maternal grandfather recounts several instances where the mother made comment to him regarding the father of the younger child’s use of alcohol indicating that it was problematic, including statements by the mother such as:-
please don’t give [the father of the younger child] any alcohol.[32] [original emphasis]
And:-
Dad, [the father of the younger child] drinks too much.[33] [Original emphasis]
[32] Paragraph 190.
[33] Paragraph 191.
He acknowledges that while he witnessed the father of the younger child drink alcohol at family functions he himself never observed the father of the younger child in a highly intoxicated state.
At the time of deposing the affidavit, the maternal grandfather stated his concerns about the children spending unsupervised time with the father of the younger child.
In his affidavit of 30 October 2018 the maternal grandfather provided at times contradictory evidence. The first example of this was his expression that the younger child was nervous prior to her first trip and was reserved when she returned.[34] Yet in later evidence the maternal grandfather said that the younger child was up early in the morning and was singing and was happy. He was quite impressed by her.
[34] Paragraph 9 of his affidavit filed 30 October 2018.
The maternal grandfather commented that there were few calls from the younger child to the elder child over the school holiday period (that was a legitimate complaint) and that the elder child had ‘missed [the younger child]’ when she had been away. That seems at some levels incongruous with his evidence that the elder child did not wish to go to Tasmania.
The maternal grandfather provided evidence that he had little contact with the mother after March 2018. He said he was contacted by a counselling agency and was invited to have some counselling with the mother. He has had two sessions in that regard and he says it was positive. In addition, he has arranged for the children to meet with the mother on a number of occasions and said that this is going well although it is somewhat constrained.
The maternal grandfather said he would provide financial assistance to the mother to provide accommodation and would have her back in his house if the Court allows it. I am troubled by this view because there is significant information in the emails that this has not worked in terms of the mother and the maternal grandmother and there were allegations that the mother was asked to leave.[35]
[35] Exhibit E12.
The maternal grandfather gave evidence about the telephone call and communication between the younger child and himself, noting that they had facilitated those calls. He noted that his daughter, Ms E Wragge (‘maternal aunt E’), had been sending information, but neither he nor the maternal grandmother have been sending any meaningful information to the father of the younger child in respect of the younger child.
The evidence of the maternal grandfather was troubling. He seemed to see his daughter, the mother, uncritically. He made few admissions as to the text messages even when they were brought to his attention and referred to them as ‘silly’. He understated the expressions of his daughter in terms of self-harm when she came to the notice of the police in June 2018.
The maternal grandfather seems remote from and at some levels dismissive of the father. He expresses the rhetoric of the importance of the father’s relationship with the younger child, but that does not seem to be borne out in the reality of the younger child’s life.
The maternal grandfather struggled even to acknowledge that 2017 must have been a dreadful year for both of the children. It is significant that the maternal grandfather gave assurances to the Court that he would care for the children and ensure that they were protected from the mother when orders were made in early December 2017. He did not do so and as a result the children disappeared for a significant period of time and it was difficult for a recovery order to be enforced.
When asked about the text messages sent by the mother the maternal grandfather said that he had not read the text messages and said that he never would. He said they were a mistake and they are sad. He gave evidence that at one stage he endeavoured to break the mother’s telephone, which he had acquired or was owned by him, to stop the text messaging because he saw the texting as the problem. The maternal grandfather did not see the mother’s underlying psychological or psychiatric issues as a problem.
The maternal grandfather seemed to easily forgive his daughter for her behaviour in respect of his grandchildren.
His approach to the mother was troubling. She endeavoured to remove the children from his care in about March 2018[36] and the mother asserted that he held her in a head lock for ten minutes. When pressed he finally conceded that this was another example of the mother’s ‘silliness’. It was not ‘silliness’, it was clear that the mother has told lies and continues to tell lies.
[36] Exhibit E29.
The maternal grandfather was referred to Exhibit E12 and he was shown a series of troubling text messages by the mother about him allegedly kicking the mother out of the house, allegations that the maternal grandmother screams and yells at the mother all day and packed her bags, and the mother’s assertion that her earlier eating disorders were caused by the maternal grandmother and so on.[37] He showed little insight as to the concerning nature of these assertions by the mother.
[37] Exhibit E12 pages 52, 57, 58, 468, 529, 531 and 533.
The maternal grandfather’s evidence was unreliable when he asserted that he and the maternal grandmother undertook the day to day care of the children on a 50/50 basis. That was clearly not the case, given that the maternal grandfather worked as a builder and the clear evidence of the maternal grandmother (which I accept) is that she did most of the parenting of these children.
The maternal grandfather gave evidence about the mother returning to live in the house with the maternal grandparents and said that he would try to ‘make it work’. When asked about to what the children would be exposed to, he said ‘I don’t know’. That is troubling in terms of the children.
The maternal grandfather gave evidence, as did the maternal grandmother, that the elder child spent more time with them than did the younger child.
When pressed on questions in cross-examination the maternal grandfather often said he could not remember. I do not accept that was the case. I accept that when difficult questions were asked he would defer, deflect or obfuscate or simply use the words ‘I can’t remember’.
He was unable accept how bad the environment in the home was when the mother was living there in the later part of 2017.
He says, and I accept, that the elder child has settled into year 7 at high school in Sydney and is managing well in that respect.
The mother made numerous allegations about the behaviour of the maternal grandparents towards her which would amount to family violence or abuse. These allegations included that the maternal grandmother essentially evicted the mother and the children from the home by removing their personal belongings to the boot of a car and a claim to police that the maternal grandfather had her in a headlock for an extended period on one occasion. Counsel for the maternal grandparents submitted at the end of hearing that these assertions were not made out on the evidence, and I accept that this is case.
As I have said earlier, the attitude of the maternal grandfather towards the mother gives me some concerns. Counsel for the maternal grandparents submitted that since they ‘dropped their guard’ in early 2018 they have committed to put in place appropriate protections to prevent the children being exposed to the mother’s behaviour.
A specific issue on which I asked the parties to address me was the concession by the maternal grandmother in evidence that she may struggle to withstand pressure from the mother and the maternal grandfather if they agree on a course of action. This was in light of the maternal grandfather’s evidence that he may allow the mother to reside at the maternal grandparents’ home in the future.
The maternal grandparents also agreed that it would be appropriate, if the Court thought it necessary, to make an order pursuant to s 64(D)(2) of the Act. I intend to make such orders. Their counsel submitted that the maternal grandparents see themselves as long-term caretakers for both children. I accept that this is the case, despite their natural concern for the mother’s welfare and earlier reticence.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The elder child wishes to live with her mother, but in her maternal grandparents’ home. In the decision regarding the elder child I gave that great weight however, given the need to protect the elder child and given the mother’s intimidation and coercive behaviour, that is not an available option for her.
There is issue as to the elder child’s views in spending time with the younger child in Tasmania. The elder child expressed willingness to do so in the Family Report when she said:-
68. [The elder child] reported that her first preference for [the younger child] is that they continue to live together at the home of their maternal grandparents. She said “we are sisters”.[70] Asked about the possibility that [the younger child] might live with her father in Tasmania, [the elder child] said this would be “not that bad (but) not what I want”. [the elder child] said that if this were to occur she would be “okay” to visit with [the younger child] at the paternal home, in addition to them spending time together in Sydney. The elder child spoke favourably about staying with the paternal family in January [2018]. The elder child believes that her mother would probably not want her to visit the paternal home but her paternal grandparents would be “okay, maybe” about possible visits.
[70] I terms of the younger child I have given this view considerable weight, along with the close and enduring relationship between the two.
The father of the younger child forwarded a message to the maternal grandparents by email on 27 May 2018 inviting the elder child to spend the school holidays with the younger child in Tasmania. No reply was received to that email. This is likely to have been a factor of the maternal grandmother leaving electronic communication to her husband.
The explanation offered by the maternal grandfather is that he does not engage in technology in any meaningful sense. He does not use text messages and emails come through his ‘office’, meaning the email address which he uses for his business. The maternal grandmother said emails come through her office. I am concerned that the maternal grandparents have left the communication about the day to day activities of the younger child to the children’s maternal aunt Ms E.
The maternal grandparents spoke to the elder child. They said that on each occasion they asked the elder child if she wanted to go to Tasmania and on each occasion she said no. None of the family took it any further nor did they encourage her to go.
The children came to Tasmania on the last day of the hearing and spent the weekend with the father of the younger child and the paternal grandparents. I am not convinced that the elder child is against spending time in Tasmania, however I accept that her connection with the father of the younger child will diminish as years pass.
The maternal grandparents submitted that once the spotlight of the Court is off these families they will reflect on the matters discussed and some goodwill may be bridged. In this circumstance the maternal grandparents believe that it is possible that the elder child will visit the family of the younger child and feel that she has ‘permission’ to do so. I accept that with the encouragement of the maternal grandparents the elder child may wish to spend time in Tasmania when the younger child visits the younger child’s father.
The younger child is at an age and maturity where her views carry little weight.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The elder child has a significant and strong relationship with the younger child. It is agreed that the most consistent relationship for the children has been each other from the birth of the younger child and onwards.
Their periods apart have been limited to the one, two or on occasions three nights which the younger child spent with the maternal grandparents prior to 2016, the short period between late January 2018 and 2 February 2018 and the times which the younger child has spent with the father of the younger child in Tasmania during school holidays in 2018.
This is a significant and deep relationship. I accept the evidence of the maternal grandparents and the maternal aunt Ms E in that respect. Ms V noted this in the family report where she said:-
105. [The younger child] and [the elder child] were observed to have the close sibling relationship they are reported to have. [The elder child] impressed as possibly assuming responsibility for [the younger child]. [The elder child]’s seemingly kind nature and love of her little sister is likely to have been a significant contributor to [the younger child’s] observed confident, content disposition.
The evidence was that they were often in bed together each morning, and that they wish to be involved in each other’s sporting activities. It is a close bond.
There is a difference in their age and maturity. The younger child has just turned seven and is in primary school. The elder child is in high school and is about to attain the age of 13. Their relationship will change over the years.
The impact on this sibling relationship a significant issue in this case. The maternal grandparents submit that if younger child is in their care then they are best placed to support the relationship between the elder child and the younger child. I accept that they will support the sibling relationship.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
There was some mild criticism of the father of the younger child in relation to his relationship with the elder child. I reject that criticism. The father of the younger child sensibly had regard to the age and maturity of the elder child and her close connection with the maternal grandparents. It is in that context that the father of the younger child decided not to seek orders in relation to the elder child. It was, and I accept, a child focused decision.
The mother did not actively seek to spend time with the children between March 2018 and August 2018. Since then she has spent time with the children with professional supervisors whose fees have been paid by the maternal grandfather.
From the father of the younger child’s point of view he wished to spend time with the younger child and I accept that he has been communicating with the younger child. At the same time he has endeavoured to communicate with the elder child, but with limited success.
The father of the younger child had made decisions in relation to the younger child , although this has been somewhat circumscribed in the last two years as a consequence of the conflict between the parties and these proceedings and the interim orders that have been made from time to time.
The mother clearly wants the children to live with her and she wishes to, after a certain period of time, take over the role of making decisions for them. I have had regard to her approaches in terms of these proceedings.
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;
The mother’s health has not permitted her to provide for the children and she looks to the maternal grandparents, particularly the maternal grandfather, to support her. He is currently paying the mother some sort of an allowance and paying rent on the property in which she is living.
The maternal grandfather has offered to pay rent on an apartment in the Suburb DD/Suburb O area for the mother so that it makes it easier for her to see the children in a supervised fashion.
The maternal grandparents that they are committed to providing for the elder child’s physical, emotional and intellectuals. Further, they submit that they are the only parties who have a demonstrated capacity to do so. On their evidence they have been significantly involved with maintaining the elder child both financially and non-financially since her birth, and I accept their claims in that respect.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I have ordered that the younger child live with the maternal grandparents and spend time with the younger child’s father. I am satisfied that this would be likely to have some detrimental impact on both the children were the younger child to live with the younger child’s father apart from the elder child. I accept the submissions of the maternal grandparents in that regard, although neither the orders sought by the maternal grandparents nor the mother in respect of the elder child would separate the children.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There will be little geographic distance between the elder child and the mother. The maternal grandfather will likely continue to fund the accommodation and lifestyle of the mother, as he has for many years and will where necessary fund paid supervisors.
Section 60CC(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied that the maternal grandparents have the capacity to meet the elder child’s needs, including her emotional and intellectual needs.
I am satisfied that the mother does not have the capacity to meet the elder child’s emotional and intellectual needs given the findings that I have made elsewhere in these reasons.
As I have said earlier, the maternal grandparents made submissions about the capacity to provide for the elder child, which, based upon their evidence and that of the experts, I accept.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The ages of these children is a significant feature to which I have had regard. The younger child is aged seven and the elder child is aged 12 soon to turn 13.
The elder child is at the beginnings of her change from a child to a young woman. The changes to her life over the next five years will be profound. The younger child is still enjoying her childhood and is likely to do so for the next four to five years.
It is likely that as the elder child becomes older that she will eventually begin to focus a little more on her friends and social life than on the younger child. I am satisfied that the children will continue to maintain a close and loving relationship over the medium term.
The maternal grandparents submitted that despite the ages of the children their relationship will ‘endure’. I accept that submission.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
No submissions were made in this regard in relation to the elder child.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I repeat the comments I have made about the mother in relation to her care of the children. In many ways she has failed in her responsibilities, particularly over the last two years with the vile text messages, engaging the children in the conflict and a litany of other examples which are set out in these reasons.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
I have described the verbal violence and the texts by the mother which are, in my view, violent. I am not satisfied that the father of the younger child was violent to the mother. I accept the father of the younger child’s evidence that the mother was at times violent to him during the relationship.
I accept that the father of the younger child and mother engaged in some awful arguments and exposed the children to those at least in 2016.
The mother has applied coercive and controlling behaviour to the father of the younger child, members of her family and the father of the younger child’s family. This included abusive text messages, derogatory thoughts, threatened harm, threatened suicide, and using the children as a device to achieve her desire for reconciliation. This behaviour is continuing.
It is significant to note that on 25 or 29 September 2018 the mother text messaged the father of the younger child, a process which needs thought and application. The text contained a photograph of the mother the children and accompanying text which read:-[71]
This was yesterday, your evil narcissistic psychopath mother will never get my children and she won’t break me. I am strong now and happy and so are my girls PLEASE GO AWAY and leave me and my girls alone. You are an evil NARCISIST inherited from your mother.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
[71] Exhibit E31 page 12.
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
This was not the subject of submissions.
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;
Unfortunately, irrespective of the outcome, there are likely to be further proceedings in particular as to times that the elder child spends with the mother and in terms of supervision. Given the concerns I have about the elder child in the care of the mother that is not an adverse outcome.
Further, if the mother seeks unsupervised time, rather than leave the mother to coerce or blackmail the maternal grandparents it seems to me that she should need the consent of the Court to offer protection to the maternal grandparents and the elder child. There is a risk that the, at times demanding and irrational, demands of the mother may break down the will and resistance of the maternal grandparents.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
I have considered all of the relevant facts and circumstances in relation to the children individually and collectively.
DISCUSSION AND CONCLUSION
Parental responsibility for the elder child could not reasonably be determined until the question of where the younger child lives is determined. That has now occurred.
In this case there has been a history of the mother engaging in family violence in terms set out above. These include engaging the children in the conflict, making threats of harm to others, including the maternal grandmother, threatening the father of the younger child of one of the mother’s other children.
The elder child’s father is in prison after committing serious crimes. He was invited to participate in the proceedings, but did not do so apart from expressing his view in support of the mother.
During the course of the hearing it was clear there was some difference in the evidence between the paternal grandmother and the maternal grandfather. The maternal grandfather said that he was open to the mother coming back into the home and living with the maternal grandmother and the children.
The maternal grandmother opposed this course, but was concerned that she may not be able to resist the pressure put on her by the maternal grandfather and the mother to enable the mother to return and live with them. The maternal grandfather seems a very gentle soul and at times minimised the risk to the children by the mother and minimised her behaviour. Sometimes describing the mother’s text messages as ‘silly’.
The Court is concerned that the mother may put pressure on the maternal grandfather and consequently the maternal grandmother to take away the need for supervision of her time with the children. The evidence of the experts is that the mother needs time, at least one year, to genuinely begin to address her behavioural issues which are discussed in these reasons.
Ms Q, a family consultant, was asked about how the mother’s time with the elder child to go from supervised time to unsupervised time and it was put to her and she accepted that such would be when the elder child was at an age to self-protect.
Ms Q said that generally the mother needs to establish a supportive, therapeutic relationship where she feels supported and is not getting assistance. There will need to be an absence of drink-driving, suicidal ideation and rash behaviour. She said time is a factor and was to be measured in years.
The risk for the elder child in this case is that the maternal grandfather’s concerns about the mother may diminish with the passing of time. He may underestimate the risk that the mother poses to the elder child and both he and the mother may pressure the maternal grandmother to consent to move to unsupervised time in circumstances where the health and wellbeing of the elder child could be compromised for the reasons outline earlier. This Court has intentionally made orders for supervision and for that supervision continue. There is no mechanism in the orders for that supervision to end. The reason the Court did that was to protect the elder child from physical or psychological harm and from being exposed or subjected to abuse, neglect and family violence.
Given the events of 2017 through to the hearing I am satisfied that those circumstances still exist. I am satisfied that the mother may use coercion or duress to gain the agreement of the maternal grandparents to put in place unsupervised care by way of a formal or informal parenting plan. These are exceptional circumstances, such as, in my view, would warrant the making of an order pursuant to s 64D(2) of the Act.
Given the health and behaviour of the mother, particularly over the last two years or so, the detail of which I have set out earlier, she is not a serious candidate for a residence order for either of the children. She exposes the children to the risk of abuse, violence and neglect.
However, on the evidence it is not in the best interest of the elder child for the mother to have parental responsibility either now or sometime in the near or medium future. To do so would simply lead to further conflict, further litigation and an inability to make decisions in relation to the care of the elder child. The mother is incapable of making sensible parenting decisions and has been in that position for some years.
As such I am satisfied that the maternal grandparents should have shared parental responsibly for the elder child. The concerns I have about the maternal grandfather will be reduced with the order pursuant to s 64D(2) of the Act and when the elder child is seeing the mother in a supervised situation the order giving shared parental responsibility to the maternal grandparents adds another level of protection for that child.
Residence
It is not appropriate that the mother live in the same home as the children. The requirement for supervision will be in the medium or long term and unsupervised time will need careful consideration and court approval. The elder child’s needs would be best met by living with the maternal grandparents.
I have had the opportunity of seeing all of the parties, observing their demeanour and listening to their evidence and the evidence of their witnesses. I have read all the material over eight days of hearing. I am not that convinced that the children would cope particularly well with being separated from one another on a full time basis.
The children are happy and settled at school and happy and settled in their home relationships, however, they are at unacceptable risk of exposure to emotional, psychological and physical harm in the care of the mother through the blindness of the maternal grandfather and, I believe, through the mother’s and possibly the maternal grandfather’s pressure on the maternal grandmother.
The operation of s 60DA of the Act
This is a case where the elder child is at risk of harm in left the unsupervised care of the mother. Given the evidence referred to above and the risks including the emails and the impact on the child over the last two years, I am satisfied that s 61DA(2) of the Act applies in that I have found that the mother has engaged in family violence.
In terms of parental responsibility the mother seeks the orders set out in her proposed orders.[72] These include an order that the maternal grandparents have sole parental responsibility for the elder child. This is supported by the Independent Children’s Lawyer. Accordingly, the order for sole parental responsibility can be made without controversy and I will make that order.
[72] Exhibit E47B
TIME
In relation to time the mother spends with the elder child I had regard to the submissions made on behalf of the mother. However, the Independent Children’s Lawyer and senior counsel for the maternal grandparents submitted that the elder child must live with the maternal grandparents and that the maternal grandparents must have parental responsibility. I accepted their submissions and the rationale upon which they were based.
The single expert opined that this could move to unsupervised time fairly quickly. I reject the single experts’ evidence in that respect, particularly given the history of the mother’s care of the children and the abuse to which I referred earlier. I do not know what mental illness or personality issues afflict the mother. The evidence in respect of this is unclear. I have seen the mother in the witness box and I have read the text messages sent by her and I have made findings in respect of the evidence for the other five major people in the life of this child including the maternal grandparents, the paternal grandparents and the father of the younger child. Given those circumstances it is improbable that unsupervised time will be a realistic outcome for some significant time.
For there to be unsupervised time between the elder child and the mother there will need to be persistence, love, patience and hard work. The mother will have to come to terms with and address those issues to which the experts have referred.
I am satisfied that this family who have worked hard with the mother over the years will continue to do so in the future.
The issue is whether the mother spends time with the elder child on a supervised basis in accordance with agreements reached between the maternal grandparents and the mother and provided it is supervised by one of the members of the mother’s family being her parents and/or her siblings.
The mother on the other hand seeks orders for unsupervised time commencing a month from the date of the orders and escalating in intensity until February 2019 when she proposes that the elder child will live with her and spend time with the maternal grandparents at times agreed. The mother seeks permission to obtain passports and travel overseas.
I accept and adopt the submissions of the Independent Children's Lawyer and senior counsel for the maternal grandparents that there should be supervised time, arranged via the maternal grandparents but at all times supervised. I will give leave for the maternal grandparents to have the mater relisted before me for the purposes of taking the necessary undertakings.
Change of name
The mother and the paternal grandparents have applied for orders to enable the elder child’s surname to be changed by removing the reference to the elder child’s father’s surname The orders sought are set out in the short minute of order tendered by the maternal grandparents.[73]
[73] Exhibit E30D.
The elder child’s father has nothing to do with the elder child at this stage and has had very little meaningful contact with the elder child over her life. This is the view of the mother and maternal grandparents and given the elder child’s father’s history and the evidence that the elder child identifies strongly with and is attached to the maternal family I am satisfied, in all of the circumstances that those orders ought to be made.
Passports and overseas travel
The maternal grandparents seek orders that they be able to apply for a passport for the elder child. This power ought to follow on from the order for sole parental responsibility to which I have referred to above. The elder child is likely to travel through school and social activities over the next five years before she attains the age of 18 years. There is no indication that the maternal grandparents are based anywhere other than the Sydney metropolitan area. I have read the evidence of the maternal grandparents in this respect and I am satisfied that they ought to be able to have, as part of their powers in exercising parental responsibility, the authority to apply for a passport the elder child’s name and any renewal of such passport. The passport should be retained by the maternal grandparents.
As a corollary to that order the maternal grandparents may wish to take the elder child on overseas holidays. Cleary, they cannot remove the elder child from Australia without permission from the Court or the mother. This Court wishes to avoid causing further litigation and in that regard it will make the orders as sought by the maternal grandparents. This is provided that the mother is given notice in advance of the proposed departure dates together with details of the travel.
There is no reason to anticipate that the maternal grandparents will remove the elder child permanently from Australia. If the travel is not appropriate the mother would have time, if she chose, to make an urgent application to a court exercising jurisdiction under the Act to prevent such travel, if the Court considered it inappropriate. I intend to make that order.
INJUNCTION
The maternal grandparents seek an injunction against the mother restraining her from approaching their residence, the elder child’s school or attempting to seek time with the elder child other than as specified in these orders.
Given the mother’s disregard of orders over a period of time, absconding from and avoiding returning another child in December 2017 and endeavouring to remove a child in breach of the orders in March 2018 I am satisfied that the maternal grandparents need this protection to ensure the safety of the elder child.
Information from Queensland
For this Court it was of significant need to have a copy of the sentencing remarks of the Supreme Court of Queensland when the elder child’s father was sentenced to imprisonment for serious crimes. The sentencing remarks have been placed on the database created pursuant to ss 18-21 of the Supreme Court Library Act 1968 (Qld) (‘SCL Act’) which is known as the Queensland Sentencing Information Service, or ‘QSISS’, database.
Efforts were made by the parties and by Registrars of this Court to obtain a copy of the sentencing remarks through the administrative channels. These efforts were completely unsuccessful. The remarks were not available when needed and senior counsel for the maternal grandparents provided written submissions in respect of this issue.
Given the need to protect children it is completely unsatisfactory that those sentencing remarks were not be made readily available to a Federal Court when it was readily available to any Queensland State Court.
I requested submissions from senior counsel for the maternal grandparents and he said:-[74]
[74] Submissions filed on behalf of the maternal grandparents.
9. The bases on which access to “restricted information” may be allowed pursuant to s 18 of the SCL Act are provided by s 19 of the Act. If, as submitted above, there is no evidence that [the elder child’s father’s] sentencing remarks are restricted information, the rigours of s 19 cannot apply. If the section does apply, the Family Court is submitted to fall outside the various categories of eligible entities referred to in s 19, and Benjamin J is submitted not to be a “relevant judicial person”.
10. A number of possible avenues of access to the database suggest themselves. Others do not. The Court’s associated jurisdiction pursuant to s 33 of the Family Law Act 1975 Cth (“the FLA”) cannot provide that avenue, as the section is not a source of non-Federal jurisdiction (see Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457).
11. The Court’s accrued jurisdiction pursuant to s 31 of the FLA may be thought to confer jurisdiction on the Court with respect to the SCL Act. The maternal grandparents submit that the Court’s accrued jurisdiction cannot be enlivened to procure access to the database.
12. To enliven the Court’s accrued jurisdiction, it is necessary to establish that enlivening the laws of a state (in this case) is required for the court to determine the “whole matter” before it (Fencott v Muller (1983) 46 ALR 41). Inherent in the exercise of accrued jurisdiction is the existence of a non-Federal justiciable controversy, the resolution of which is integral to the determination of the matrimonial cause. No justiciable controversy arises, or can arise with respect to [The elder child’s father’s] criminality. The circumstances of his offending are a matter of record, and no part of the matrimonial cause depends upon the determination of any issue in that respect (compare with In the Marriage of Warby (2002) FLC 93-091). Jurisdiction thus cannot accrue with respect to the SCL Act.
13. Section 79(1) of the Judiciary Act 1903, pursuant to which state law may be “picked up” (Pederson v Young (1964) 110 CLR 162, at 165), might appear to provide a jurisdictional foundation for access to the database. The maternal grandparents submit that any such appearance is illusory.
14. In John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65, at 95, the High Court recorded that “to ensure that state laws dealing with the particular topics mentioned in the section are applied in the exercise of federal jurisdiction by courts other than state courts, it is necessary that state laws be applied according to the hypothesis that federal courts do not necessarily lie outside their field of operation”.
15. More bluntly, it has been said that, of their own force, as state laws have no application to proceedings involving federal jurisdiction, s 79 “fills the gap” which would otherwise apply (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, at 35; APLA Ltd v Legal Services Cmr (NSW) (2005) 224 CLR 322, at 230; Gordon v Tolcher (Senafield Pty Ltd (in liq) (2006) HCA 62, at 30; CSL Australia Pty Ltd v Formosa (2009) 261 CLR 441, at 23-24).
16. The maternal grandparents submit that there at least two insurmountable obstacles to any attempt by the Court to “pick up” the provisions of the SCL Act.
17. The first obstacle arises from the limitation on the scope of the state law which is purportedly picked up. In Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285, at 289-290, French J, as the later Chief Justice of the High Court then was, reiterated that s79 does not purport to do more than “pick up” state laws with their meaning unchanged, by reference to earlier High Court decisions.
18. If the Court acquires jurisdiction under the SCL Act in reliance upon s 79 of the Judiciary Act, so doing is submitted to have no possible utility. The strictures created by the Queensland statute identified above would remain. Only by erroneously qualifying, or expanding the interpretation of the provisions of ss 17, 18 and 19 would purporting to pick up the state law have potential utility.
19. The second obstacle arises from the fact that s 79 of the Judiciary Act is directed to courts exercising the judicial powers of the Commonwealth, not to officers of the executive governments of the states, or to the assumption by judges exercising power conferred pursuant to Chapter III of the Constitution of administrative powers of state officials created by state laws (see Solomons v District Court of New South Wales (2002) 192 ALR 217).
20. It is submitted to be readily apparent that the powers conferred on the “committee” by the relevant provisions of the Queensland SCL Act are administrative, and not judicial, and equally apparent that no exercise by the Family Court of the powers conferred on the committee by the SCL Act in the matrimonial cause would be authorised by s 79 as an exercise of an administrative function which was “truly appurtenant” to the exercise by the Court of its judicial power (cf Victoria v Australian Building Construction Employees’ and Builders’ Labourers Federation (No 2) (1982) 152 CLR 179, at 186-187).
21. As a matter of comity, courts are reluctant to subpoena the records of other courts. On the assumption that the database entry with respect to [the elder child’s father’s] sentencing remarks does not constitute “restricted information”, and would not be made unavailable on that basis, a request by the Registrar of the Family Court to the committee for such access would be likely to be met with resistance, on the basis that the purpose for which such access was sought did not fall within s 17(2) of the Act. Such a request may be worthwhile, if only in the absence of an apparently more appropriate course.
22. The “Supreme Court Library Committee” is defined in the Dictionary to the SCL Act as a “body corporate”. A subpoena could be directed to the committee to produce a copy of the database entry with respect to [the elder child’s father’s] database entry. If the entry does not constitute “restricted information”, which can presently only be known by the committee, it is difficult to see on what basis production could be successfully resisted. The terms on which inspection might be granted could be contentious, notwithstanding the provisions of s121 of the Family Law Act, and the sanctions provided for “misuse of QSIS information” by s 21 of the SCL Act. If [the elder child’s father’] database entry contained restricted information, the provisions of ss 19 and 20 of the SCL Act would render production and inspection problematic.
23. The committee may attempt to avoid compliance with a subpoena for production of a copy of [the elder child’s father’s] database entry in reliance upon the presumption that the Crown, in the right of the state of Queensland, cannot be bound to produce such information unless the legislation creating it evinces an intention that it be bound (see Bropho v Western Australia (1990) 171 CLR 1). The terms of s 3(2) of the SCL Act are submitted to establish that the Queensland legislature intended the committee to be fully amenable to the operation of all applicable state and federal laws.
Senior counsel then opined, and I agree, that the time and effort and expense involved in obtaining these reasons is disproportionate to the potential probative value of the entry and, less than assured of success or already success.
It is wholly unacceptable that a Federal Court dealing with the interests of children should have information such as this delayed in this way.
Generally arranging to obtain sentencing remarks is a relatively easy task and it ought to be an easy task given the need to protect children and those who care for them.
Sentencing remarks are of significant moment in terms of some parenting matters. Parties may be put to enormous and unnecessary expense in obtaining those remarks.
This Court requests that the Commonwealth Attorney General consider making representations to his Queensland counterpart to make changes to the SLA Act so that courts exercising jurisdiction under the Act may have ready access to remarks on sentencing
I certify that the preceding five hundred fifty-eight (558) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 8 March 2019.
Associate:
Date: 8 March 2019
Key Legal Topics
Areas of Law
-
Family Law
-
Statutory Interpretation
Legal Concepts
-
Jurisdiction
-
Remedies
-
Procedural Fairness
-
Standing
-
Costs
0
2
1