Hyland and Simmonds and Ors
[2016] FamCA 468
•13 June 2016
FAMILY COURT OF AUSTRALIA
| HYLAND & SIMMONDS AND ORS | [2016] FamCA 468 |
| FAMILY LAW – CHILDREN - Parenting Orders – Where the father poses a risk of family violence – where there is a risk the children will be exposed to that violence – where none of the parties assert that the father presented an unacceptable risk – where the mother poses an unacceptable risk – where the mother is associated with drug culture – where mother has not prioritised children’s needs when affected by drugs – where mother perceives maternal grandmother has a proxy for the children to go into her own care – where maternal grandmother has played a significant part in the children’s lives – where change of primary care to the maternal grandmother would have a profound and long lasting effect – where greater weight given to risk factors than the benefit of having a meaningful relationship with both parents or maternal grandmother – Where there is a practical difficulty of the children spending time with either parent given the distance between the parties – Where presumption of equal shared parental responsibility does not apply – where an order for sole parental responsibility made – where father and maternal grandmother have joint decision making in relation to cultural education – where maternal grandmother is most likely to foster the children’s aboriginal heritage |
| Family Law Act 1975 (Cth) ss 4, 4AB(1), 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAC Evidence Act 1995 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Ms Hyland |
| FIRST RESPONDENT: | Mr Simmonds |
SECOND RESPONDENT: | Mr Mills |
| INTERVENOR: | Ms Donlen |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Gray |
| FILE NUMBER: | CSC | 300 | of | 2012 |
| DATE DELIVERED: | 13 June 2016 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 29, 30 and 31 January, 3 and 4 February 2014, 1, 2, 3, 4 and 5 February, 4 and 5 April 2016 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Aboriginal & Torres Strait Legal Service |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Wrenn 3 and 4 February 2014 |
| THE SECOND RESPONDENT: | In Person |
| COUNSEL FOR THE INTERVENOR: | Mr Pack |
| SOLICITORS FOR THE INTERVENOR: | Queensland Indigenous Family Violence Legal Service |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms McArdle |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Susan Gray |
Orders
All previous parenting orders are discharged.
B born … 2008, C born … 2010 and D born … 2011 (“the children”) live with Mr Mills (“the father”).
The father have sole parental responsibility for the following major long term issues for the children:
(a)Their education (both current and future);
(b)Their religious upbringing;
(c)Their health;
(d)Changes to their living arrangements that make it significantly more difficult for the children to spend time with each parent.
The father and the maternal grandmother will have joint responsibility for the children’s cultural education and wellbeing.
The father is to advise the mother and maternal grandmother seven days prior to making any major long term decision in relation to the children that is to be made, the nature of and the reasons for that decision, and the mother and maternal grandmother are permitted to express an opinion in relation to the issue. The final decision will be that of the father.
The names of the children are to remain as set out on their birth certificates, unless otherwise agreed between the mother and father.
The father is to provide a list of the details to the mother and maternal grandmother of the children’s school and health providers within 48 hours.
The mother and maternal grandmother shall spend time with the children in H Town as follows or at other times as agreed between the parties:
(a)For the whole of each the first and third term Queensland gazetted school holiday period in even numbered years such time shall commence the first Sunday after the last day of school and conclude on the Saturday before commencement of school;
(b)For the whose of the second term Queensland gazetted school holiday period in odd numbered years such time shall commence the first Sunday after the last day of school and conclude on the Saturday before commencement of school;
(c)For one half of the fourth term Queensland gazetted school holiday period the first half in even numbered years and the second half in odd numbered years;
(d)The time the children spend with the mother and maternal grandmother pursuant to order 8(c) in even numbered years shall commence on the Sunday after the last day of school and conclude on Sunday of the third week and in odd numbered years shall commence on the third Sunday of the holidays and conclude on the Saturday before the children return to school.
(e)The mother and maternal grandmother are at liberty to communicate with the children via telephone, Skype or facetime each Tuesday, Thursday and Sunday, with the mother to call at 7:00pm and the maternal grandmother to call at 7:30pm if the mother and maternal grandmother are not in the same household at the time of the calls.
(f)If the children are unavailable to take the call from the mother and maternal grandmother pursuant to order 8(e), the father will assist the children to call the mother and maternal grandmother the following night.
(g)The mother and maternal grandmother can spend time with the children in E Town, or any other location where the father is residing with the children, from Thursday after school until Sunday at 5:00pm on one occasion each school term provided they give the father 21 days’ notice and ensure the children attend any extracurricular activities in which they are enrolled;
(h)The mother and maternal grandmother are responsible for the costs of travelling to E Town to spend time with the children pursuant to order 8(g);
(i)If there is any cultural event the maternal grandmother proposes the children shall attend with her, she shall provide the father with 28 days’ notice of such event and will be responsible for collection of the children from the father and return of the children to the father.
Travel and changeovers
If the mother or maternal grandmother are not available to spend time with the children during the school holiday period then they shall advise the father at least 21 days prior and the children shall remain with the father.
At the commencement of the children spending time with the mother and maternal grandmother the father will travel with the children to F Town from E Town and the children will be collected by the mother or maternal grandmother from F Town.
At the conclusion of the children spending time with the mother and maternal grandmother the mother or maternal grandmother will travel to F Town and the children will be collected by the father or his agent.
The mother and maternal grandmother shall pay $50.00 each to the father 2 weeks prior to any time spent with the children by way of direct deposit for travel expenses.
Authorities
These orders provide authority for the children’s school to provide information to the mother and maternal grandmother regarding the children’s progress at school and for the mother and maternal grandmother to obtain at their expense copies of the children’s school reports and school photographs.
If the children require any medical or allied health treatment the father shall advise the mother and maternal grandmother as soon as possible of the health matter and provide authority to any treating medical practitioner or allied health care professional to provide information to the mother and maternal grandmother and the mother and maternal grandmother are permitted to attend any related appointments.
The father shall provide a copy of these orders to the school and any treating health provider for the children.
Counselling
The father continue to attend upon his counsellor on such dates and at such times as the counsellor may from time to time recommend.
Restraints
No party shall denigrate the other parent or other family members in the presence or hearing of the children and shall remove the children from any other person who may denigrate the other parent or other family members.
All parties are restrained from consuming or being under the influence of alcohol beyond the legal driving limit or any illicit drug whilst the children are in their care and shall remove the children from any other person who is under the influence of alcohol or illicit drugs.
The parties shall communicate by way of text message or telephone only in relation to the children.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hyland & Simmonds and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC300/2012
| Ms Hyland |
Applicant
And
| Mr Simmonds |
First Respondent
And
Mr Mills
Second Respondent
And
Ms Donlen
Intervenor
REASONS FOR JUDGMENT
INTRODUCTION
The children and the parties
This unusual case relates to the parenting arrangements for three children. They are B, born in 2008 and hence presently 8 years of age, C, born in 2010 and hence presently 6 years of age, and D, born in 2011 and hence presently 5 years of age (“the children”). When the trial initially commenced before me on 29 January 2014, there were four parties. The applicant was the children’s mother, Ms Hyland (“the mother”). The first respondent was Mr Simmonds (“Mr Simmonds”) who is B’s father. The second respondent was Mr Mills (“the father”) who is the father of C and D. Ms Donlen (“the maternal grandmother”) had also intervened in the proceedings.
The course of the proceedings
When the trial of the proceedings first commenced before me, the principal issues in the litigation related to the alleged illicit drug use of all of the parties, including the maternal grandmother, however no party was prepared to concede that illicit drug use was then a current feature of their lifestyle. However as the evidence unfolded, it became increasingly likely that indeed Mr Simmonds and the mother were still regularly ingesting substantial quantities of illicit drugs, and further, that Mr Simmonds was likely involved with illegal firearms as well.
Perhaps cognisant of the way in which the evidence was unfolding, on 4 February 2014 the parties were then able to reach agreement as to an interim regime of orders which would prevail for at least six months, at the conclusion of which an updated Family Report would be obtained. Those consent orders saw all three children reside with the father (up until then only C and D had been residing with him and B had been residing with Mr Simmonds) and provided for B to spend time with Mr Simmonds, and for all children to spend time with the mother and the maternal grandmother. The orders also specifically required Mr Simmonds and the mother to engage with an accredited drug and alcohol agency, and further obliged the parties to comply with all requests made of them by the Independent Children's Lawyer to submit to random drug and alcohol testing.
At the time of those interim orders, the father was residing in G Town, Mr Simmonds was residing in F Town, and the mother was residing in H Town. Because the orders provided for Mr Simmonds to spend greater periods of time with B in the event that he moved to G Town from F Town, it was expected that he would shortly do so, and indeed that transpired. However that had two unexpected consequences. The first was that the father’s then partner rapidly formed a strong antipathy to Mr Simmonds. It is likely that she also felt some pressure from having the care of three young boys in her household.
Whatever be the reason, not long after the February orders, she and the father ceased to cohabit and terminated their domestic relationship. The father, who had full-time employment requiring him to work long hours, had been largely dependent upon his partner to provide day to day care for the children when he was away. Given that, he contacted the mother, and suggested that she could come and live with him to assist him in raising her three children. This she did, but the parties either immediately or shortly thereafter re-commenced their relationship. That was the first unexpected consequence of Mr Simmonds moving to G Town.
The second unexpected consequence was that, far from the move from F Town heralding some new start for Mr Simmonds, he appears to have only deepened his involvement in criminal activity associated with drugs. In evidence before me, and perhaps a little flippantly, the father described Mr Simmonds’s life in G Town as that of a “gangster”. That appears to have reached its zenith on 15 May 2014 when, during a road rage incident, Mr Simmonds produced an unlicensed black Walther P22 semi-automatic pistol, and pointed it at the driver of another vehicle, seemingly in an effort to intimidate him. It was not a particularly clever thing to do. The other driver took the registration number of Mr Simmonds’ car and reported the occurrence to the police. Police later attended Mr Simmonds’ home and apprehended him, together with the loaded pistol. He was charged with some offences relating to that episode and granted bail. However he did not answer his bail and it seems was last heard of attempting to evade detection by police somewhere in Central Australia. Save for one later cameo in the chronology, Mr Simmonds thereupon ceased to have any involvement with these proceedings and, more disappointingly, with B.
The resumed relationship between the mother and the father was short lived. By November or December 2014 they had again separated. However they remained sexually involved, and notwithstanding the terms of the consent orders, effected some species of shared care arrangement of the children; indeed it appears as though they attempted to shield the children from their breakup to some degree. However for reasons which I shall explain in due course, in April 2015 the father ceased to make the children available to either the mother or the maternal grandmother, and communication between the children and those persons became severely curtailed. That was the situation which prevailed when the trial eventually resumed before me on 31 January 2016.
Sometime shortly after December 2014, the father commenced a domestic relationship with Ms I. She appears to have enthusiastically assumed the role of carer to the children when the father was absent for work. However that relationship terminated not long after the father unexpectedly discovered that Ms I was sending sexually explicit photographs of herself to Mr Simmonds. That is Mr Simmonds’s last cameo appearance in the narrative of this case.
At a point in time which the evidence does not enable me to discern with clarity, save to say that it was after the conclusion of the school year in 2015, the father relinquished his employment in G Town and went to live in E Town with the three children. At the same time Ms I went to live in J Town. By then there were domestic violence orders, as I shall detail later, which precluded the father from contacting Ms I, although as at January 2016 apparently she remained involved in the care of the children.
The resumed trial before me in January 2016 was estimated to require two days of Court time. That was partly informed by the fact that the father had failed to engage in the last two pre-trial events before a Registrar, and it was assumed that the case would go undefended. That would have been remarkably unsatisfactory, given that the children were not only then in the father’s care, but had been so, in the case of C and D, for much of their lives, and in the case of B, for the last two years. Moreover, the Family Report of June 2015 recommended that situation continue.
Efforts to contact the father had proved fruitless, however on the morning of the first day of the resumed hearing, eventually contact was able to be made with him, and he said that he had mistakenly thought that the trial was due to commence in two days’ time, and certainly intended to appear. He then drove through the night from E Town to Cairns, through flooded and rain affected roads and eventually arrived, albeit a little late, without having in fact slept at all in the proceeding 36 hours. Moreover, he had not in any way prepared for the trial, including not having read the considerable material which the other parties had filed. He was in a most unenviable position. Nonetheless I should record that he adequately acquitted himself in the conduct of his case during the hearing notwithstanding those disadvantages.
The father’s re-engagement meant that the trial could not conclude within two days. In consequence, I permitted the trial to displace another matter from the Cairns sittings list, but even with that additional time being made available, it was still unable to conclude within five days. In large part that was because the trial rapidly became focussed upon a key witness, a Ms K. Her evidence was significant because she said that she had seen the father on 16 October 2015, whilst he was still in a relationship with Ms I, smoking both ice and marijuana with Ms I in front of the children. If true, not only would this evidence wholly discredit the father, who claimed he had long since left the drug scene, but it would also cast grave doubt about his ability to in fact properly care for the three children.
As shall be seen, Ms K’s evidence was not beyond challenge. On 16 October 2016 she had visited the father’s house with her then boyfriend, Mr I, who was Ms I’s brother. Consequent upon the events of that evening, Ms K and Mr I in fact terminated their five year relationship the following day, in acrimonious circumstances. Moreover it is plain that Ms K was highly antipathetic towards Ms I, even prior to her separation from Mr I, and had been friendly with the mother for some years.
Because the resumed hearing was unable to conclude before me in February 2016, it was adjourned again for further hearing in April 2016. The only advantage of that was that on 5 February 2016, further interim orders were made which permitted both the mother and maternal grandmother to recommence spending time and communicating with the children. They had not done so in any significant way since April 2015, and this was highly criticised by the Family Report writer.
The parties’ proposals
As ultimately formulated, and subject to one exception, the father sought orders that the children live with him and spend block holiday time and weekend time with the mother and maternal grandmother. The exception, which is frankly troubling, was that on the last day of the trial, during submissions by the solicitor for the mother, I was told that in the event that I ordered that the children live with the father, the mother intended to immediately relocate to E Town, in which event both the mother and father (but not the other parties) agreed that the children would forthwith commence spending time with the mother each alternate weekend, and after that had taken place for six months, would then commence to spend time with her each alternate Wednesday from after school until the following Monday at the commencement of school. After that had taken place for two months, the father and mother agreed that the children would spend week about time with each parent.[1]
[1]The agreement between the mother and father was exhibit 19.
Although in the first stage of the proceedings the mother and maternal grandmother had markedly different positions (with the mother wanting the children to live with her and the maternal grandmother wanting them to live with her) by the second stage of the trial their positions had aligned, and both agreed that the children should live with the maternal grandmother, and spend time with the mother as agreed between them, but in default of agreement, spend weekend and block holiday time with the mother and father. That time was conditional upon the mother and father each submitting to, and passing, random urine drug analysis tests on an ongoing basis. However their agreement started to fray at the edges on the last day. Firstly, the mother agreed with the father, in the event the children were ordered to live with the father, that she would move to E Town and commence spending time with the children as previously discussed, which was opposed by the maternal grandmother. Secondly, whereas the maternal grandmother proposed ongoing drug tests, in the course of his submissions, the solicitor for the mother suggested that in fact those tests might only run for some two years.
Ultimately the Independent Children's Lawyer supported the position of the father, save she opposed any orders consistent with the last-day agreement of the mother and the father.
BACKGROUND FACTS
The father
The father was born in 1984 and hence is presently 32 years of age. Although it appears as though he lived in J Town for most of his childhood, he nonetheless moved around a lot. He told Dr J, a psychiatrist who examined him in 2013, that he had a “wretched childhood” and actually missed years seven and eight at school. He told Dr J that his parents separated when he was 11 or 12 years of age, and thereafter he was sometimes with one and sometimes with the other. He said it was an unstable situation. He said that his mother neglected her children through alcohol and men, and in consequence he did not speak to her for 13 years, but had reconciled by the time of that consultation. His father was imprisoned for three years, and then apparently later incarcerated for a further three years at a prison farm, for growing marijuana and for violent assaults.
From an early age the father was involved in drugs. Initially it was marijuana (from the age of 14 or 15) but that moved to party drugs and amphetamines. He told Dr J that he used the amphetamines to help him cope with work and particularly night shifts. It was at this stage of his life that he first met the mother when he was 22 years of age, but they did not then commence a relationship. During the period when they were friends, he got to know B almost from birth. B was one year old when the father and the mother commenced their relationship on 11 July 2009. The father was then aged 25; the mother only 17. The father says that he and the mother were then regularly using both amphetamines and marijuana.
Mr Simmonds
Mr Simmonds was born in 1988 in K Town in New South Wales and hence is presently 27 years of age. He appears to have spent his childhood around various country towns before settling in F Town in about 2006 when aged 17 or 18. He told Dr J that he never knew his natural father, and that his conception was the result of a casual relationship. He told Dr J that his step-father abused him both sexually, physically and emotionally, the sexual abuse extending over a three year period. He left school at grade 9 and was able to obtain employment, and ultimately qualified as a tradesman He was about 17 or 18 years old when he had a casual sexual encounter with the mother which resulted in her falling pregnant with B. Initially he was unsure if in fact B was his, but DNA testing proved he was the father. Although initially he had no contact with the child, upon the DNA testing showing that he was the father, he started to have contact.
Mr Simmonds told Dr J that he commenced smoking marijuana at the age of 11, and progressed to amphetamines. Although he told Dr J that he had stopped using drugs completely in order to get custody of B, that seemed most unlikely, given that B was able to accurately describe and draw an ice pipe for Ms L in January 2014, saying that he had seen his father “burning it”. It appears fairly plain that Mr Simmonds has been for many years heavily involved in the drug culture, certainly as a user, and likely as a dealer.
Mr Simmonds also appears to have an obsession with firearms. He has been variously charged with, pleaded guilty to, and been convicted of, drug offences and firearm offences, but typically he has some convoluted explanation as to why in fact he was not guilty of each offence, and that his plea of guilty was either to help others or an expedient outcome. Given his subsequent conduct in G Town after the 2014 trial, what Mr Simmonds asserts must be taken with a very large grain of salt.
The mother
The mother was born in 1991 and hence is presently 24 years of age. She had a chaotic childhood. Her mother and father separated when she was about seven years of age and she told Dr J that her mother “moved south into the bush” until she was aged 12, but that she saw her father regularly. Her mother was a frequent user of drugs (seemingly principally marijuana) and her father was an alcoholic, who ultimately died of liver failure aged 56. She told Dr J that her father’s death seriously affected her.
When she was about 10 years of age her mother formed a relationship with a considerably older man, and it appears as though that relationship lasted for some four years.
When the mother was 13 years of age, her grandmother died and that also adversely affected her. Her step-father’s consequent death did not affect her so much, because he was ill prior to passing.
She left school at grade 10 when she fell pregnant to Mr Simmonds. The pregnancy was not planned. B was one year old and the mother was his full-time carer when she and father commenced their relationship in about July 2009.
The maternal grandmother
The maternal grandmother was born in 1967 and hence is presently 49 years of age. She grew up in M Town and attended a private school there until year 11, when she fell pregnant and left. She subsequently had another three children to the same man. She told Dr J that neither he nor she worked. She told Dr J that the father of her first children was “abusive, domineering and into marijuana.” After six years that relationship failed. She told Dr J that she subsequently married the mother’s father, who although a drug addict, was in employment and not violent. She lived with him for five years in N Town before he died of liver failure.
By the time of trial she had been in a relationship for seven years with her husband, Mr Donlen, whom she married in 2011. She lives with him at a home which they own at P Town close to H Town.
On 11 March 2008 she was convicted for assault occasioning bodily harm in the F Town Magistrates Court, arising out of a disagreement with another woman. On 7 October 2009 she was convicted of possessing dangerous drugs (seemingly marijuana) and then on 3 April 2012 she was convicted of unauthorised dealing with shop goods; she says that at the time there was some financial stress in her household. Finally on 3 October 2012 she was convicted in the H Town Magistrates Court of possessing dangerous drugs, together with utensils, which resulted with a fine of $1,550.00. Her explanation for that offence was that she had inadvertently stumbled across some drugs[2] left in her house by the father shortly after his separation from the mother, and that she foolishly took possession of them with a view to disposing of them by burning them. I would have to confess to some suspicion that may not be the whole truth.
[2]Said in the Family Report of 26 January 2014 at [46] to have weighed 3kg.
The first relationship
At the time when they commenced their relationship in July 2009, both the mother and the father were residing in F Town. From the outset the maternal grandmother was unhappy about the relationship, because the father had previously been in a relationship with a Ms O, who was the daughter of a former partner of hers. The maternal grandmother believed that the father had abused Ms O, and was worried that this would happen to the mother. The maternal grandmother – correctly – also believed that the father was heavily involved in drugs.
At the commencement of the relationship the father asked the mother to move with him to E Town. She agreed, however the maternal grandmother was unhappy about that. Initially she did not let the mother take B with her, and kept him in her own care. However after a period of time the father, paternal grandmother and mother, came to H Town and took B from the maternal grandmother, and went back to E Town with him.
In early 2010 the mother and father, together with B, moved to a northern suburb of G Town. At that time the mother was pregnant with what proved to be C. The father obtained employment at a business owned by his aunt.
Sometime after C’s birth the mother says that she discovered that the father was injecting methamphetamine. The mother denies that at the time she was also using those drugs, although as shall be seen, the mother’s denial of drug use is dubious at best. For instance although at paragraph 18 of her affidavit filed 16 January 2016 she said “I myself have never used speed or any unlawful drug apart from marijuana,” later in paragraph 26 of that very same affidavit she concedes that she did in fact allow herself to be injected with speed over a three month period on approximately six occasions. Moreover, in some of her earlier affidavits the mother emphatically denied ever having used any drugs, and although at paragraph 28 of her affidavit of 16 January 2016 she attempted to explain that this was due to embarrassment or naivety, when confronted with the terms of those affidavits, she had to concede that they were simple lies.
In September 2010 the father and mother moved from G Town to E Town, according to the mother, so as the father could “get clean.” Whilst there she fell pregnant with D. The mother says that the father was not supportive of her, and particularly that the father was regularly at his mother’s home consuming alcohol to excess.
In early 2011 the mother and father moved to H Town and obtained accommodation next door to the maternal grandmother at P Town. Whilst there the father obtained a job at courtesy of Mr Donlen. In April 2011 the mother gave birth to D in H Town. In August 2011 they moved from next door to the maternal grandmother’s to another home in P Town. The mother says that in October 2011 she found the father injecting drugs again. She says that he persuaded her to herself take the drug and that she did this for on six occasions over a three month period. She says that she realised that the use of the drug was ruining their relationship, and she discussed this with the father, who agreed to stop. However in February 2012 she found the father injecting again and discovered that he was frequenting “sex sites, talking disgusting to other women” and so she asked him to leave. He agreed. The father then moved back to E Town. The children remained living with the mother, who at paragraph 31 of her 16 January 2016 affidavit conceded “I did smoke cannabis at night after the kids went to sleep.”
Post first separation
It would be no exaggeration to say that post-separation both the mother’s and father’s lives – to say nothing of the children’s – have had a strong aspect of chaos to them. Initially the children remained living with the mother in H Town, and the father was living in E Town. However in about April 2012, the father withheld the children after they had spent time with him during holidays, on the grounds that the mother was unfit to parent them because she remained abusing drugs. On 17 May 2012, the then Federal Magistrates Court ordered that the children return to the mother’s care. However in her first Family Report of 14 August 2012, Ms L expressed grave concerns in relation to the mother’s then drug use.[3] She recommended that B reside with Mr Simmonds, and C and D reside with the father, pending further investigation. In fact by then the father had driven from E Town to H Town and taken C and D into his care, and in his affidavit of 16 August 2012, explained that he did so with the mother’s consent, in consequence he says, of the appalling condition of the mother’s then house, neglect of the children and the fact that the mother appeared to be high on methamphetamine.
[3]See, for instance, paragraph 51. Indeed in paragraph 38 of her 18 January 2016 affidavit the mother freely concedes she was smoking marijuana at that time.
Then on 16 August 2012, after the matter had been urgently listed before the Federal Magistrates Court, Willis FM ordered that B be handed over by the mother to Mr Simmonds. The position was further regularised on 7 September 2012 when her Honour made interim orders for the children to live with their respective fathers, and for them to spend supervised time with the mother.
On 29 January 2013 the maternal grandmother was granted leave to intervene. On 9 April 2013 the matter was transferred to this court, and the orders of 7 September 2012 were those which prevailed when the trial first commenced before me on 29 January 2014. As I have already recounted, that trial adjourned part heard when consent interim orders were negotiated between the parties which saw all three children move to the care of the father. I have previously recounted that unexpectedly, the father resumed his relationship with the mother shortly thereafter, and towards the middle of 2014 Mr Simmonds, who by then was living in G Town, left that city and has been on the run from police ever since.
The second relationship
The relationship between the father and mother resumed in about March 2014 and lasted again until November or December of that year. The mother claims that the termination of the relationship was associated with domestic violence, which is a matter which I will consider in due course. What does seem plain is that during the course of the resumed relationship the father was very busy in employment, and the mother assumed much of the responsibility for the day to day care of the children.
Post second separation
It would be incorrect to assume that the second separation effected some severance of the parties’ relationship. Indeed now is an appropriate point to record that I have grave reservations as to whether the mother and father have even to this day truly severed their relationship. For instance, not only did the parties for some months after December 2014 continue to have sexual relations, but more, in his evidence before me, the father conceded that he still had feelings for the mother, and said that (as at April 2016) the mother had been harassing him proclaiming that she loved him and wished to reconcile with him, to the point where he blocked her telephone from being able to call his any more. In part that might be because when, pursuant to the interim orders that prevailed between February 2016 and the final stage of the trial in April 2016, the mother had travelled to E Town to spend time with the children, she and the father had resumed intimacy, at least to the extent of hugging and kissing each other.
After separation in December 2014, and notwithstanding the interim orders which still then prevailed, the mother and father effected – or at least attempted to effect – equal shared care of the children between them. However the father says that the mother remained enmeshed in the drug culture, in consequence of which the mother was not properly caring for the children or ensuring their attendance at school on the weeks when she had them.
The mother denies that at the time she remained enmeshed in the drug culture in G Town. However I am comfortably satisfied that her denial is false, and knowingly so. Principally that is because there are both hospital and ambulance records which show that on 12 May 2015 the mother was taken by ambulance to the G Town Hospital in relation to a suspected drug overdose on the previous day. Those records contain accurate details as to the mother’s then residential address, date of birth, age and Medicare number.
In her evidence the mother attempted a fanciful explanation of those records to the effect that it was not her who was taken by ambulance to hospital, but rather someone pretending to be her, who had, some short time before, stolen her wallet containing the cards with that sort of information on them. I wholly reject that explanation and am well satisfied that the mother was knowingly lying when proffering it.
Some months after the second separation, and pursuant to the interim consent orders of February 2014 (which by then the parties had stopped ignoring and had sought to partially or completely revive) the children spent holiday time with the mother and maternal grandmother in H Town. The father says that about three weeks after they were returned to him, he had cause to examine a suitcase which had been returned with them, and discovered in the lining of that bag a quantity of marijuana. He immediately accused the mother, and indeed the maternal grandmother, of planting that material with a view to incriminating him. He says that he took the marijuana to the police, but ultimately nothing was done by way of charging of either the mother or maternal grandmother.
The father says that this event, together with the mother’s continuing neglect of the children, caused him to withhold them from spending time with or communicating with the mother and maternal grandmother pursuant to the interim orders. Indeed he did so until the further interim orders were negotiated between the parties in February 2016.
That was the situation which prevailed when Ms L conducted the interviews for her final Family Report dated 17 June 2015. Because she no longer had care of the children, the mother’s social security benefits had been cut and she was unable to afford independent housing and was living with friends in G Town. She conceded to Ms L that she was then unable to have overnight time with the children, was intending on shortly returning to H Town, and supported her mother’s proposal that the children live with her, based upon the lack of stability which she was then able to offer them.
By the time of those Family Report interviews, the father had re-partnered with Ms I, who I have mentioned earlier in these reasons. It appears to be uncontroversial that at about that time, or shortly thereafter, the father and Ms I commenced to cohabit, albeit occupying separate rooms on different levels of the house in question. Ms I told Ms L that she spent a lot of time doing the majority of household duties, which she enjoyed. At paragraph 39 of the Family Report, Ms I “denied ever being involved with [Mr Simmonds]” which is interesting considering it was her sending explicit photographs to him which ultimately caused the failure of the relationship between her and the father only some months later.
In the course of those Family Report interviews Ms L suggested to the father that he would be well advised to seek some assistance in relation to what she suspected was depression. At the time the father was working in a responsible and stressful management position over a number of worksites in the G Town district, which involved him taking work home to do of an evening. He also had become distressed with the death of a friend. On another occasion when he had taken a day off work to care for his children, there was an accident at work in which a fellow employee became injured, for which he felt responsible. He also said that frequently of an evening he would receive out of hours phone calls from workmates who were having difficulty with their own lives. At some point he also had a falling out with his younger brother, who was working on one of the jobs which he was managing.
Indeed the father did seek medical assistance and was diagnosed as suffering from depression, but after about three weeks on the prescribed medication, went off it, as the side effects were, from his perspective, unsatisfactory. Sometime later, he discovered that Ms I was sending explicit photographs to Mr Simmonds, which caused his relationship with her to fail.
The father’s uncontested evidence was that towards the end of 2015 his elder brother had a frank conversation in which he “told the father to wake up to himself” and “clipped him around the ears.” This caused the father to return with the children to E Town, to sort his life out. I shall detail the father’s present living arrangements and his future plans in a moment. However before doing so I should say that the mother, after June 2015, fell pregnant to a man who, although the mother described as an old friend, apparently fled the country upon the mother telling him that she was pregnant, and has not thereafter returned. At a time which the evidence does not enable me to determine, the mother left G Town and went to live again with her mother and step father in P Town. That was the position as at February 2016, however by April 2016 she had moved out into her own accommodation nearby. In 2016, when the trial finally concluded before me, the mother was expecting her fourth child in about six weeks’ time.
As at April 2016, the father had for some months been living in community housing in E Town with a view to obtaining further housing on a rental/buy plan, which he said was due to come into effect on 12 April 2016. Apparently that arrangement would require him to rent the house for three months, at the end of which he would have an option to commence upon the purchase of the property by instalments. His evidence is that the house is directly opposite the children’s school.
Also in E Town lives his elder brother, and in the E Town district, his mother. He and his brother have some business plans and are in the process of leasing a shed from which their proposed business could be conducted. The father says that he intends to stay in the E Town district, as the children are doing well at school there, and he has excellent community support there, not only from his family members, but also from Q Group.
Indeed it does appear to be the case that at least for the first term of 2016 the children’s absenteeism from school has substantially improved to the point where one of the children has had a perfect attendance. Their grades also appear to be improving. They have good access to allied therapies courtesy of the school and Q Group.
THE ISSUES
With the assistance of the parties I identified that the following are the issues, in the sense that their resolution is likely to substantially inform the determination of the proceedings.
1.What is the nature of the relationship between the children and:-
(a)The father;
(b)The mother;
(c)The maternal grandmother.
2.Would the children benefit from a meaningful relationship with:
(a)The father;
(b)The mother
(c)The maternal grandmother.
3.What, if any, risk to the children is posed by:
(a)The father;
(b)The mother;
(c)The maternal grandmother.
4.Would a meaningful relationship between the children and the other parties be facilitated by:
(a)The father;
(b)The mother;
(c)The maternal grandmother.
5.Would the children’s right to enjoy their aboriginal culture be facilitated by:
(a)The father;
(b)The mother;
(c)The maternal grandmother.
6.What would be the likely effect on the children of a move in residence from the father to the maternal grandmother.
7.Is the parties’ communication sufficient to enable any form of shared parental responsibility, or consultation mechanism if sole parental responsibility were ordered.
Once I have considered relevant statutory provisions and legal principles, I will discuss those issues in advance of a traverse of any further residual relevant s 60CC factors, and then consider the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(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).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that 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. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 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. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[4]
[4] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is also potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[5]
[5] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[6]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[6] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
NATURE OF RELATIONSHIP BETWEEN THE CHILDREN AND THE PARTIES
Overview
Ms L last gave a Family Report on 17 June 2015. At that time she observed that the children appeared to have a good relationship with all parties, including the father. However understandably, given the relative vintage of that report, and the substantial changes that have occurred since then, including the father having terminated his relationship with Ms I, having moved to E Town and the children not having seen the mother or maternal grandmother from shortly thereafter, when she gave her oral evidence before me in February 2016 she was not prepared to venture a definitive view as to the nature of the relationship between the children and any of the parties at that point in time. There are therefore obvious limitations in the evidence when discussing this issue.
The father
A consistent theme of Ms L’s observations of the father and the children is that “the boys all love and respect him and they were observed having a close bond with them. They all appeared very comfortable together. The father talked knowledgably about the children’s needs..”[7]
[7]Family Report 17 June 2015 paragraph 42. See also paragraph 60.
I am satisfied that the children have a loving relationship with their father, and are primarily dependent upon him for nurture and support. I am satisfied that the father is a reasonable disciplinarian of the children and provides adequately for their physical needs. I am further satisfied that he has, at least in recent months, appropriately prioritised their educational and associated needs.
It is pertinent to make an observation in relation to B. Although there are in the material allegations by the mother that the father discriminates against B, in that he treats the other boys more favourably than him, I do not accept that. I am satisfied that the father does indeed expect B, being the eldest of the three boys, to act as a role model, but I am not satisfied that he in some way adversely discriminates against him. Indeed I am quite satisfied that the fact that the father has been willing to assume responsibility for the full-time care of B even though he is not his biological son, speaks volumes about his love for him. He has known B virtually all of his life, and B is indeed fortunate to have had a person willing to have assumed the role of father to him, giving the several failings, and ultimate departure, of his biological father, Mr Simmonds.
The mother
As at June 2015, Ms L observed that the children “also have a strong bond with their mother, however when they were with her, they were agitated and ran about. Whilst they were excited and happy to her, they did not listen to her, and at times, she did not monitor their activities. However they love her dearly and they have a lot of fun together…”[8] Since then the children have only commenced spending time again with the mother in about March 2016. The father’s evidence is that the children did not enquire much about the reason why they were not seeing their mother in the interim, but I am satisfied that it is highly likely that the children were missing their mother in that time. Even though the absence of spending time and communicating with her may have to some extent diminished their relationship with her, there is no reason to think that it is not still meaningful to them, particularly since it has now recently been reinvigorated.
[8]Paragraph 93.
I am satisfied that Ms L’s observations in June 2015 are likely to be a close approximation to the current relationship between the children and mother.
The maternal grandmother
In her latest Family Report Ms L opined that “.. the grandmother has been involved during all the children’s lives. They know her and love her. [B] has a strong attachment to her …”[9] Again, notwithstanding the virtual absence of her from the children’s lives for many months thereafter, I am satisfied that the children do indeed dearly love their grandmother, and have a good relationship with her. That said, I am satisfied that the nature of that relationship is unlikely to have the level of attachment which the children have for at least their father.
WOULD THE CHILDREN BENEFIT FROM A MEANINGFUL RELATIONSHIP WITH THE PARTIES
[9]Paragraph 88.
Overview
Ultimately no party contended that the children would not benefit from a meaningful relationship with each of the other parties. However that is not to say that the benefits which the children obtain from those relationships may not differ between parties. Against that background I shall review the benefits which the children would likely obtain from a meaningful relationship with each of the parties to this litigation.
The father
It seems plain that the father exerts control and discipline over all three children. Further, it seems clear that he engages with them in a very hands on way, both in relation to outdoor activities such as camping and fishing, and also their sporting interests. The father expresses a love of rural Queensland lifestyle, and I have little doubt that he imparts that love to his sons (including B in that description). Ms L observed in her final Family Report “they have a strong bond with their father who appears to be a strong stabilising element. Whilst they played and laughed and had a good time with him, they generally responded to his requests and listened closely. Around him, they are contained and behaved calmly.”[10] She was not challenged in relation to this evidence and I accept it.
[10]Paragraph 92.
Given their most recent school reports, I am satisfied that the father adequately provides for their educational needs. I am also satisfied that in E Town, their health needs are being adequately met.
However there is one caveat to this, and that is the extent to which the father may have exposed the children to domestic violence. I will discuss the allegations of domestic violence when discussing the risk which the father poses to the children, however for present purposes, plainly if the father does expose the children to family violence directed towards his partners from time to time, then the children would derive no benefit whatsoever from that, and indeed may suffer substantial harm.
The mother
I have little doubt that the children would benefit from a meaningful relationship with the mother in the ordinary course of events. However there are some reservations about the mother, and what she brings to the children’s lives.
The greatest area of concern is the mother’s association with the drug culture. I am by no means satisfied that the mother has disassociated herself from it. Her false denial of her hospitalisation in May 2015 causes me grave concern in that respect. Moreover her involvement in that culture now appears to be of long duration, and I am satisfied that on occasions it has substantially affected her capacity to care for the children, and to prioritise their needs over hers.
In making those observations I am cognisant that, at least until the last day of the trial, no party contended that the children should live with the mother, but rather only spend, at most, weekend and holiday time with her. However the focus shifted further towards the mother on the last day of trial, in consequence of the agreement between the mother and father as to what would occur in the event that the children lived with the father and the mother moved to E Town.
Nonetheless I am satisfied that so long as the mother is not under the influence of drugs, she is likely to confer a substantial benefit to the children from having a relationship with them.
The maternal grandmother
As with the mother and father, the maternal grandmother brings benefits to the children of a different kind than they do. I am comfortably satisfied that the maternal grandmother is the most stable of the parties, and that her home environment is likely to be the most stable as well. Further, the fact that she has for most of the children’s lives been in a consistent relationship with one person, likely reinforces that sense of stability. There can be no doubt that she greatly loves the three boys, and has their best interests at heart. The fact that she has persisted in this litigation for such a period of time speaks volumes to her determination to achieve a good outcome for the children. Of course she has the benefit of greater maturity than either of the mother or father do, although it is to be hoped that both the mother and father will further mature over time.
I am satisfied that the maternal grandmother appreciates the importance of education to the children, and would vigilantly attend to their health needs.
RISK POSED TO THE CHILDREN BY THE PARTIES
Overview
An analysis of the parties’ proposals shows that no party asserts that the other presents an unacceptable risk of harm, or a risk of harm which cannot be adequately mitigated by conditions imposed upon the parties by way of order. (The obvious exception is Mr Simmonds, who all parties accepted should only be permitted to spend time with B in a supervised setting). However that is not to say that the parties did not allege that each other presented a risk, or that appropriate mitigatory measures were not necessary, although their responses to the asserted risks were varied.
Notwithstanding her history – even recent history – with marijuana, no party asserted that the maternal grandmother presented a risk of harm to the children in relation to drug use, of such a magnitude that it needed to be addressed by way of conditions being imposed on any time the children spend with her.
On the other hand, the maternal grandmother asserted that both the father and mother posed a risk of harm to the children from drug use, such that they should only spend time with the children if they were able to demonstrate clear drug tests on a regular basis.
The Independent Children's Lawyer’s position was a little different. Whilst acknowledging that the mother, and to a lesser extent the father, presented as some risk to the children from drug use, she did not contend that the risk was of such a magnitude as to preclude them spending time with the children on an unsupervised basis, and did not support drug testing, whether for a limited or an ongoing period, on the practical basis that the history of the parties’ non-compliance with requests for drug tests would only likely see them do so again, or try and employ some method, in the event they were ingesting drugs, to produce a false clear result.
Although not clearly articulated on the basis of risk, the father’s approach was a little different again; plainly he believes that both the maternal grandmother and mother present a risk to the children from their drug use, but he does not appear to think that any supervision or drug testing is necessary, but rather, as ultimately revealed in the agreement with the mother, seemed to think that her living in close proximity to him in a small community would provide sufficient safeguards to the children.
Against that somewhat confusing and conflictual approach, I will turn to addressing the risks of the individuals.
The father
Drugs
Unlike the mother, the father has continually admitted to historical drug use. In April 2016, he admitted that his most recent use was in February of that year, comprising him having a “puff on a joint” that was being passed around a circle of friends with whom he was drinking alcohol. He has also admitted in the past having, with a degree of regularity, used amphetamines, particularly to help him deal with working night shifts. In discussing the quantity of marijuana which he found in the children’s suitcase, to my mind he demonstrated a real familiarity with estimating the weight of drugs. As with the mother, his drug use started at an early age, and has been a persistent feature of his life over time.
Moreover the father has regularly refused to submit to drug tests when required of him by the Independent Children's Lawyer, offering excuses that he could not afford them, or that they were pointless because anybody can produce false clear results. Although at one stage he identified that, having worked in a workplace which regularly required him to submit to drug tests, meant that those results could be obtained on subpoena, in fact no such results were obtained, whether pursuant to subpoena (which apparently was not served) or by informal arrangement with his associates in that company. As to the latter, the father said that he was told that clear drug tests were never kept as they were of no use to the company.
It is against that less than satisfactory background that I turn to consider the serious allegations raised by Ms K. Ms K filed an affidavit on 19 January 2015. In it she deposed that she had been in a relationship with Mr I for six years, and inferentially said that relationship had terminated. She said that on Friday 16 October 2015 she and Mr I, en route to R Town, called in to see Ms I in G Town, who by then was living in the same house as the father. She said that when they went inside the house, she saw Ms I near her bedroom holding a bong and a bowl of marijuana, and said that her boyfriend Mr I “walks straight over to Ms I and both of them began to smoke marijuana.” She then said that the father (whom she had previously heard screaming at Ms I in the backyard) returned to the house with his brother and went into Ms I’s bedroom carrying a bag of methamphetamine. She said that Ms I “then stood in the doorway talking with Mr I with the bag of ice and a pipe in her hand.” Although she wanted to leave and asked Mr I to go with her, he said that “he wanted to stay for a bit.”
She then left the house without Mr I and got herself a hotel room for the night. She then said that she arrived back at Ms I’s house at about 9:00pm and “as I walked in past Ms I’s room and could see Mr I, Ms I and Mr Mills in the room as the door was open. I could see them smoking both marijuana and ice.”
Her evidence also touched upon sexual aspects, asserting that Ms I’s bedroom was decorated with manikins dressed in leather lingerie and had whips and handcuffs hanging on her walls, and further that she observed Ms I with a device on her fingertips which Ms I told her was an “electronic clitoris stimulator” which she tried to attach to Ms K’s arm. She said that she and Mr I finally left the home but “by this time the lounge area was hazy because of the smoke that was coming from the drugs.”
Importantly, all of this was allegedly taking place either in the presence or the near vicinity of the children, who were in the lounge at the time.
She said that she and Mr I argued at the hotel when they arrived, and continued to do so the next day until “Mr I ended up smashing the side of my car.” That appears to have affected the termination of their relationship, and shortly afterwards a protection order was made in which she was the aggrieved and Mr I the respondent.
If true, it will be appreciated that the father’s recent use of methamphetamine and marijuana is a grave matter, as is the fact of his denial of it.
However both the father and the Independent Children's Lawyer contend that Ms K’s evidence should not be accepted. They do so for a range of reasons.
The first is that Ms K has apparently had a long but acrimonious relationship with Ms I. The second is that having terminated her relationship with Mr I in acrimonious circumstances, she plainly has little good will towards him either.
The third criticism relates to the circumstances in which Ms I’s evidence came before me. The criticism commences with what is said to be the understatement by both the mother and Ms K as to their pre-existing friendship. In cross-examination Ms K ultimately conceded that she had “hung around for a year” with the mother when Ms K was 17 years old and both were living in F Town. Further, although both Ms I and the mother were somewhat dismissive of it, in fact Ms K and the mother had communicated intermittently on Facebook for some years, seemingly from at least May 2013.
That assumes significance because no attempt was made by Ms K to communicate to the mother the alleged events and observations of Friday 16 October 2015 via Facebook, or indeed at all. Rather, the way in which the mother came to hear of them had some curious aspects to it. The mother says that she was walking through F Town on a date which she cannot particularise (but from the maternal grandmother’s evidence appears most likely to be 13 November 2015) when she chanced to see Ms K. At the time Ms K was packing up her belongings from the home which she had previously shared with Mr I, and he was present on the premises supervising her.
The mother and Ms K then had a conversation. The mother recalls that Ms K was concerned about the father’s care of the children, principally in two respects, firstly that Ms I was being called “Mumsie” by one or more of the children, and secondly that Ms I and the father were using drugs. When the mother asked Ms K some specifics about their drug use, she was told that they were “injecting speed” although Ms K did not say that she had seen them doing so, but just that she knew they were. Also in that conversation the mother says that Ms K told her that Ms I had put a “clitoral stimulator” on the children’s hands. However the mother expressly disavowed during cross-examination of her by Ms McArdle, counsel for the Independent Children's Lawyer, that in that conversation there was any of the sort of detail that later emerged in relation to Ms K’s alleged observations in her affidavit.
Ms K’s evidence, when under cross-examination by Ms McArdle, was that in that conversation the mother told her that she was pregnant, and that Ms K told the mother that she had been pregnant the previous year. She also said that she told the mother that she had seen her children when she travelled to the speedway with the father and Ms I in June of that year. Arising from that visit, she told the mother that she did not believe that the children should be forced to call Ms I “Mumsie”, and was concerned that were disciplined if they did not call her that. She said that she also told the mother that when she attended the home of the father and Ms I on 16 October 2015 at 8:45pm, “the kids were still starving hungry and they ate my pizza.” She also recalled that she told the mother that Ms I used a sexual stimulator to shock her and put it on the children’s arms. She said she told the mother that Ms I’s house was not “kid friendly” and that she had seen Ms I “smoking weed and crack around the kids.” She said the conversation with the mother did not go long as Mr I was still there and she was taking her possessions from the home. She said that he was walking around trying to listen in to their conversation. She thought the conversation lasted about 30 minutes.
Therefore not only is it curious that Ms K did nothing by way of involving the authorities arising from her observations and concerns on 16 October 2015, but further, she did not provide the mother with the detail of those observations, or at least the detail contained in her later affidavit, on the first occasion when she had the opportunity to do so. Moreover, there is the peculiarity that one of Ms K’s main concerns related not to drug use by the father (indeed the mother’s recollections that communication with Ms K in November did not deal with the smoking of marijuana or ice by the father, but rather injection by the father and smoking by Ms I) but instead that the children were being forced to use the term “Mumsie” to describe Ms I.
After that chance encounter, the mother and Ms K became more frequent in their communication via Facebook. However those conversations did not, it appears, descend to any detail of the concerns which Ms K had expressed to the mother in their chance November encounter, and indeed it was apparently not until December that the mother first requested Ms K to meet “myself, mum and my lawyer” to compile an affidavit. Although Ms K initially agreed to do so, the very next day she changed her mind and said “I just don’t want to be involved with it at all.” The explanation she gave for that was that she then believed that the mother was pregnant with the child of her ex-boyfriend. However she did in that message go on to say that she had prepared an affidavit which she would email that afternoon “but then I just want to be left alone ok.”
The maternal grandmother became involved in the process of engaging Ms K in the litigation. At paragraphs 148 to 151 of her affidavit filed 19 January 2015 she deposed to the fact that the mother told her that she had received a Facebook message from Ms K, who had provided the mother with her phone number “stating that in effect she had concerns for the children.” The maternal grandmother then called Ms K, and she was told a version of events not dissimilar to that which is in Ms K’s affidavit.
As it transpired the mother was able to eventually persuade Ms K that her baby’s father was not her ex-boyfriend, and when that was cleared up, the mother re-commenced to press for the production and presentation of the requested affidavit. For instance on 17 December 2015 the mother offered to provide some affidavit templates to Ms K to assist her in drafting her affidavit. There was no response to that offer.
29 December 2015 is a significant date in the chronology of this part of the case. The conversations between Ms K commenced at 2:30pm on that day, with the mother asking Ms K if she knew whether or not the father was still in G Town. In her reply, Ms K indicated that the father was still in G Town but “he nearly killed [Ms I] the other day and cops can’t find her now.” In subsequent conversations, on that day Ms K told the mother that the father had “choked [Ms I] to the point she was past (sic) out n they are using hard.” Ms K encouraged the mother to go to the police and tell them “that you can’t contact [the father] n you know there (sic) using drugs heavily in front of the kids n your fearful something has happened to them.”
During the course of those message exchanges the mother asked Ms K “can you please do affidavit for my boys’ sake.” Initially there was no response by Ms K to that request, so the mother requested affidavits on another two occasions during the course of that day, before eventually at 8:02pm Ms K said “I’ll get m to you n put all this into it to..”
However in fact Ms K did not provide the affidavit on that occasion or even shortly thereafter, and on 6 January the mother continued to press for the affidavit. In the course of correspondence on that day Ms K told the mother “I’m keen to stomp this cunt [Ms I] I swear next time I see her she will eat pavement that’s a promise.”
The mother continued to press for the production of the affidavit without any apparent response. Then on 13 January Ms K messaged the mother “Oi i (sic) got done last night hard n my affidavit is going to be fucked cause I said I’m against drugs.”
Notwithstanding this hiccough, eventually on 18 January 2016 Ms K signed her affidavit and it was filed the following day. Sometime shortly thereafter it appears as though Ms K was served with a subpoena requiring her attendance at Court to give evidence, no doubt in anticipation that she would be required for cross-examination. On 28 January Ms K told the mother in her Facebook message “yea getting subpoena that’s pretty fucked buddy I’ve helped you out n then I get this lol I’m fuckin pissed.” That said it appears as though Ms K was of the view that she would have attended voluntarily in any event.
I have little doubt that the father and maternal grandmother have a strained relationship for a number of reasons, including the maternal grandmother’s belief that the father has physically abused the mother, whereas the father believes that the maternal grandmother was instrumental in trying to have him charged with the criminal offence of possession of drugs.
Through that prism of their perception of each other, both the father and the maternal grandmother are begrudging of the other’s involvement in the children’s lives.
To my observation, the father is prone to frustration, which from time to time is likely to express itself as anger. I have little doubt that he is frustrated with the maternal grandmother. I am not satisfied that he is likely to actively seek to cultivate the relationship between the children and the maternal grandmother, but on the other hand I am not satisfied that he would seek to sabotage it either. As I have indicated, I think that his attitude is best described as being begrudging, but not actively hostile.
Different considerations prevail in relation to the mother. Save for the period between May 2015 and February 2016, the father has consistently tried to involve the mother in the children’s lives, sometimes to their detriment. He continues to apparently identify real value in the children having both parents actively involved in their upbringing. The most recent example of that is his agreement with the mother on the last day of trial to ultimately move towards shared care again, if the mother moved to E Town and the children were living with him. However as I have indicated, I am concerned that this may not necessarily be all about the children, but rather about the continuation of the parties’ enmeshed relationship via the children. However those concerns do in part inform me in reaching the conclusion that the father would facilitate the relationship between the children and the mother.
Ms L’s opinion in relationship to this issue was that the father was unlikely to actively facilitate a relationship between the children and the other parties given his past behaviour, particularly most recently that he relocated from G Town to E Town – hence making it far more difficult for the children to spend time with the mother and maternal grandmother – without even so much as telling the mother he was doing so. Whilst I do not ignore that evidence, Ms L was giving evidence as at June 2015, and matters have since progressed.
The mother
The evidence does not demonstrate that the mother has sought to actively exclude either the father or the maternal grandmother from the children’s lives. A similar observation can be made in relation to the mother’s attitude to Mr Simmonds. True it is that the mother has aligned herself with the maternal grandmother’s position, but I have to say that I have strong suspicions that that was a tactical decision on her part, and did not necessarily reflect her honestly held beliefs. Particularly I was troubled that she perceived her mother as a proxy for the children going into her own care. Therefore to the extent that the maternal grandmother’s proposed orders potentially would have the father excluded from the children’s lives (for instance if he were never able to return a drug test) or minimise his involvement in their lives by virtue of restricted time, I do not think those criticisms necessarily could be made with equal force against the mother.
Ultimately I am satisfied that the mother would facilitate a relationship between the children and the other parties.
The maternal grandmother
Ms L was critical of the maternal grandmother because of the proposal which she put forward in relation to the children spending time with the father. In a sense she was saying that the maternal grandmother’s approach was somewhat punitive in character, and I accept that there is an aspect of that to the maternal grandmother’s case.
I have little doubt that the maternal grandmother believes that the father presents a significant risk of harm to the children. I am satisfied that she would seek to monitor and control the father’s relationship with the children in view of that perceived risk. I do not accept that she would likely seek to encourage the children’s relationship with him, but rather, to the extent that they had a relationship, it would be one that she would begrudgingly accept.
Although ultimately the orders which she sought were the same in relation to the mother and father, I do have some residual concern that she does not in fact treat both equally when it comes to the children, and is likely to view her daughter’s relationship with the children more favourably than that of the father’s.
Aboriginal culture facilitation
Ultimately this was not a matter that assumed great significance in the trial. The father is not of aboriginal descent, whereas the maternal grandmother and mother are. Interestingly however, as Ms L pointed out in her evidence, in the relevant court forms, the mother did not and never has identified as aboriginal, although the maternal grandmother does. Apparently the maternal grandmother’s knowledge of her ancestry is only of relatively recent vintage, although she has enthusiastically embraced it.
I am satisfied that the only person who places great value upon the children’s aboriginal culture is likely to be the maternal grandmother. That said, I am satisfied that the father and mother would both promote the children’s involvement in that culture at a relatively superficial level, and certainly would not seek to impede it. However I am satisfied that the best conduit to their heritage is via the maternal grandmother.
LIKELY EFFECT OF MOVE FROM FATHER TO MATERNAL GRANDMOTHER
Ultimately the evidence in relation to this given by Ms L was, if not unchallenged, then not substantially challenged. Ms L emphasised that such a change would be momentous for the children. This has now been her view for some years. For instance in her Report of 26 January 2014 at paragraph 53 she said:
If the present circumstances were disturbed, the children would be deeply upset, confused and emotional, grieving for their father on a daily basis.
She repeated that opinion at paragraph 101 of her Report of 18 June 2015, and adhered to it in the witness box under cross-examination. Particularly she said that the father represents the only stable parent for these children, and that there would have to be a very good reason for a change in care. She said that adverse effects on the children would be hugely destabilising, particularly because of the lack of cognitive development of the younger two children. She said that the children would inevitably feel loss and abandonment, but are not old enough to work through their feelings on a cognitive level, and hence would act them out instead. She said that such perceptions of abandonment can flow through into later life, with adolescents and adults feeling a sense of insecurity, having difficulty in forming attachments as adults and otherwise showing disturbed behaviours.
Although Ms L acknowledged that the siblings would still have each other, she nonetheless thought that the effect on them would be massive. She said that on a worst case scenario the children could envision that it is somehow or other their fault that they have been moved from their father’s care to the maternal grandmother’s, which could cause them to suffer low self-esteem, and perceive that they are not worthy of love. If that were to occur, then she would expect them to develop drug and alcohol abuse issues later in life. I accept all that evidence.
The simple fact is that all three children have, for much of their lives, been primarily cared for by the father. Their primary attachment is likely with him. That is not to say that they do not love their mother and maternal grandmother (particularly B) but their primary source of security and nurture is the father. I am well satisfied that the effect of removing them from his care, and placing them in the permanent care of the maternal grandmother, would be profound and potentially long lasting.
PARTIES’ COMMUNICATION AND PARENTAL RESPONSIBILITY
Accepting that her familiarity with the case had ossified in about May 2015, Ms L was adamant that, at least at that point in time, the parties’ communication was not sufficient to enable any form of shared parental responsibility. Likewise she said she simply did not know whether or not their communication was sufficient to permit a consultation mechanism, as part as an order for sole parental responsibility, to work.
As between the father and maternal grandmother, I am well satisfied that any order for general shared parental responsibility would not work. Their antipathy for each other is too strong. They would inevitably conflict in relation to many matters, and I have little doubt that decision making would often end in a stalemate. They do not have a recent history of adequate, or even civil, communication, and there is no reason to think that either are motivated to now develop such a communication.
As between the father and mother on the other hand, I am satisfied that they can engage in civil communication, albeit that it is frequently in the context of their enmeshed relationship. That then from time to time causes the communication to be focussed more upon that relationship than the children, and has led to the father now blocking the mother from his phone.
When the parties separated after their second period of cohabitation during the course of the trial, it appears as though they were able to communicate in relation to some matters, but not others. For instance, the mother was able to seek assistance from the father at times when her own parenting capacities were reduced, and to an extent, vice versa also. However I am not persuaded that their communication would enable general shared parental responsibility to work well, as not only is their communication likely to deteriorate if the focus of the communication returns to their relationship again, but further, the father appears to have a terse and abrupt approach to communication, and does not handle frustration well. I think that their communication would likely descend into conflict on a regular basis, particularly if there were contentious matters being debated.
On the other hand I am persuaded that their communication would be sufficiently good to enable a consultation mechanism associated with an order of sole parental responsibility to work.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have already discussed both primary considerations, and a number of the additional considerations articulated in s 60CC. However I make the following further observations.
I have addressed the various risks which the parties pose to these children, including the risk of exposure to family violence if they are to live with the father, and I give the need to protect the children from those risks greater weight than the benefit to the children of having a meaningful relationship with both parents, or indeed the maternal grandmother.
The children are too young to express any views deserving of weight.
This is not a case in which allegations of failure to properly support the children were raised.
At the time of the conclusion of the trial the father was residing in E Town, and the mother and maternal grandmother in H Town. The father does not intend to relocate to H Town under any circumstances, but it appears as though the mother may countenance a return to E Town. It was not suggested that the maternal grandmother would likely move to E Town. So long as the parties remain living at such a great distance from each other, there inevitably will be practical difficulty and expense of the children spending time with either the father, if they are living with the maternal grandmother, or with the mother, if she remains living in H Town and the children live with the father in E Town. Similar observations apply in relation to the maternal grandmother.
Family violence orders have applied to the father and I have sufficiently addressed those earlier in these reasons. The inference which I draw from those orders is that the father does pose some risk of exposure of the children to family violence in the future.
I specifically advert to s 60CC(6) and propose to in due course fashion orders which will ensure the children’s right to enjoy their aboriginal culture includes the three matters specified in that sub-section.
PARENTAL RESPONSIBILITY
The mother and maternal grandmother propose that the maternal grandmother would have sole parental responsibility for the children. The father proposed that he have sole parental responsibility for the children. The Independent Children's Lawyer supported the father, save that he proposed that the father and maternal grandmother have joint parental responsibility for the children’s cultural education and wellbeing. In addition, the Independent Children's Lawyer proposed that there be a consultation obligation between the father, mother and maternal grandmother in relation to the making of any major long term decision in relation to the children.
It can therefore be seen that no party contended for an order for equal shared parental responsibility. That of course does not absolve me from the application of the presumption, and the statutory consequences of it provided by s 61DA.
As has been seen, I am satisfied that there have been physical interactions between the mother and the father that would likely satisfy the definition of family violence in the Act. There are therefore reasonable grounds to believe that one of the parents has engaged in family violence, and hence the presumption does not apply. Further, even if the presumption were to apply, I am not satisfied that it would be in the children’s best interests to have general parental responsibility shared equally between any combination of these parties, because their communication is insufficient to make that workable, and there is no reasonable prospect to think that their obligations under s 65DAC could be met.
It follows that there will need to be an order for sole parental responsibility afforded to the party who is the primary resident parent or grandparent of the children. Depending on who that is, questions in relation to sharing of cultural education issues, or consultation in relation to other issues, may need to be addressed.
WITH WHOM SHOULD CHILDREN LIVE
The Independent Children's Lawyer and the father propose that the children should live with the father, but spend time with the mother and maternal grandmother. The mother and maternal grandmother proposed that the children should primarily live with the maternal grandmother and upon certain conditions being satisfied, spend time with the mother and father.
The following points are in favour of the father’s and Independent Children's Lawyer’s proposal, or contrary to the mother’s:
·The children have a good relationship with the father, and have been primarily in his care for most of their lives;
·The children would benefit from a meaningful relationship with the father;
·Whilst there is some risk associated with the father by virtue of the prospect that he could continue to be involved in drug abuse, or family violence, that risk is not presently an unacceptable one;
·The mother does present an unacceptable risk of harm to the children by virtue of her likely continued association with drugs, and that risk does not wholly abate if the children are in the care of the maternal grandmother, because the mother may likely continue to perceive her as merely a proxy for the children going into her own care, and the maternal grandmother does not have an appropriate index of suspicion in relation to the mother;
·The father would likely facilitate the continuation of a meaningful relation between the children and the mother;
·The father would, to a degree, facilitate the children enjoying their aboriginal culture;
·The likely effect on the children of a move in residence from the father to the maternal grandmother, would be profound and potentially involve long term adverse outcomes for them. In the short term they are likely to experience a grief like reaction, and may even blame themselves for the change.
On the other hand the following factors are in favour of the mother and maternal grandmother’s proposal, or contrary to the father’s:
·The children have a good and loving relationship with the maternal grandmother and the mother;
·The children would benefit from a meaningful relationship with the maternal grandmother and mother;
·The maternal grandmother presents as the most stable of the parties, and has the most stable home environment;
·The maternal grandmother is the person most likely to actively foster their children’s aboriginal culture;
·Given the agreement between the mother and father on the last day of trial, if the children were to live with the father, that may see the mother in fact assume equal care with the father.
This case involves an analysis and balancing of the various factors. Particularly on one side of the balance are the risks associated with the father, but on the other side of the balance are the benefits which the children have from which they derive from their relationship with him, and the likely dramatic and profound effects of the termination of that relationship, or at least the substantial curtailment of it. Ultimately in my view, the balance weighs in favour of the father being the primary carer of the children, and I will so order.
That then brings into focus whether I should make orders in terms of the agreement between the mother and the father effected on the last day of trial. That would potentially see the children go back into a shared care arrangement between both parents. I am strongly of the view that, at least on the material presently before me, such would not be in the children’s bests interests.
Particularly I know nothing of the mother’s likely living arrangements in E Town, and I remain having strong reservations about her continued involvement in the drug culture. That is not to say that there would not be some benefits in it, including maximising the children’s exposure to the mother and hence maximising the likely benefits they would derive from that meaningful relationship, and further there would be the fact that they would get to know and grow up with the mother’s new child, being their sibling, but those benefits in my view do not outweigh the disadvantages.
Of course I am mindful that not making those orders does not mean that, as the parties have done in the past, they will not simply ignore whatever orders have been made, and do whatever they feel like from time to time. I recognise the likely reality of that, however it does not cause me not to make what I consider to be the orders in the best interests of the children, or alternatively to make orders which may reflect what ultimately occurs on the ground.
The only other matter that I now need to return to again is parental responsibility. Because the children will be primarily living with the father, I am satisfied that he should have the lion’s share of the decision making in relation to them, and that he should have sole parental responsibility. However, and notwithstanding their likely poor communication, I am satisfied that he and the maternal grandmother should have joint decision making responsibility in relation to the children’s culture, education and wellbeing, because the maternal grandmother is the person most likely to actively foster the children’s aboriginal heritage being enjoyed by them.
I am further satisfied that, as the Independent Children's Lawyer sought, there should be an obligation on the father to advise the mother and maternal grandmother of any proposed decision of a major nature in relation to the children, and to give the mother and maternal grandmother the opportunity to make input into that decision. However the final decision must remain that of the father.
TIME AND COMMUNICATION
Ultimately there was little dispute between the parties about the time and communication regimes that should prevail if they were unsuccessful. The reality is that the distance between E Town, where the father and children will live, and H Town, where the mother and maternal grandmother presently live, precludes frequent weekend time being spent by the children with the mother and maternal grandmother, however plainly they should have the opportunity to spend time with them on any occasion that they travel to E Town. Otherwise the children should spend blocks of holiday time with the mother and maternal grandmother as proposed by the Independent Children's Lawyer.
OTHER ORDERS
Otherwise I am satisfied that the orders as proposed by the Independent Children's Lawyer are appropriate and in the children’s best interests, and will make them.
CONCLUSION
For these reasons there will be orders pronounced as set out at the commencement of this judgment.
I certify that the preceding one hundred and ninety three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 13 June 2016.
Associate:
Date: 13 June 2016
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