IBBOTT & CHACONAS AND ORS

[2014] FamCA 73

FAMILY COURT OF AUSTRALIA

IBBOTT & CHACONAS AND ORS [2014] FamCA 73

FAMILY LAW – CHILDREN – Best interests – parental responsibility – with whom the children shall live and spend time – three children with two different fathers – the children were all living with the mother – risk of harm by neglect, physical abuse, exposure to family violence, and inadequate supervision in the care of either the mother or the second respondent – two children have significant health problems – mother contravened interim orders – separation of siblings – presumption of equal shared parental responsibility applies to the parents of the eldest child – eldest child to live with the applicant – two youngest children to live with the interveners and they have equal shared parental responsibility – all children to spend limited supervised time with the mother – second respondent able to spend time with the two youngest children as he lives in the same household – interveners have little insight into the second respondent’s impaired parenting capacity – injunction made preventing the second respondent’s unsupervised care of the children for more than 12 hours – injunction preventing the second respondent from contacting the mother

FAMILY LAW – EVIDENCE – Paternal grandfather’s evidence not adduced independently – deprivation of weight due to simple adoption of the paternal grandmother’s evidence

Crimes Act 1900 (NSW) s 61AA

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 68B
Australian Barristers Rules 69-71

NSW Solicitors Rule 25

Day v Perisher Blue (2005) 62 NSWLR 731

APPLICANT: Mr Ibbott

FIRST RESPONDENT: Ms E Chaconas

SECOND RESPONDENT: Mr B Chaconas

INTERVENERS: Mr J Chaconas & Ms P Chaconas

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 3341 of 2012

DATE DELIVERED: 18 February 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 29, 30, 31 January and                4 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Weightman

SOLICITOR FOR THE APPLICANT: MRM Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr M Graham

SOLICITOR FOR THE FIRST RESPONDENT: Jennifer Blundell & Associates

COUNSEL FOR THE SECOND RESPONDENT: N/A

SOLICITOR FOR THE SECOND RESPONDENT: N/A

COUNSEL FOR THE INTERVENER: Mr G Levick

SOLICITOR FOR THE INTERVENER: Peter Hamilton & Associates

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

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

Orders

Discharge of former orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)C Allen-Ibbott, born … May 2009 (“C” );

   (b)D Chaconas, born … January 2011 (“D”); and

   (c)F Chaconas, born … January 2011 (“F”).

Name

1. The parties are restrained from causing or permitting C to be known by any surname other than “Allen-Ibbott”.

Parental Responsibility

1. The applicant and first respondent shall have equal shared parental responsibility for C.

2. The interveners shall have equal shared parental responsibility for D and F.

Residence

1. C shall live with the applicant.

2. D and F shall live with the interveners.

Spending Time (C)

1. The applicant, first respondent, and interveners shall take all reasonable steps to ensure that C spends time with:

   (a)The first respondent (unless otherwise agreed between the applicant and first respondent):

   (i)From 1.00 pm until 5.00 pm each Saturday;

   (ii)From 1.00 pm until 5.00 pm on Mother’s Day; and

   (iii)From 3.00 pm until 7.00 pm on Christmas Day.

   (b)The interveners (unless otherwise agreed between the applicant and interveners), from 9.00 am until 5.00 pm on the first Sunday of each month.

2. For the purpose of implementing Order 7(a) hereof:

   (a)The time spent by C with the first respondent shall be supervised by either the maternal grandmother (Ms A), maternal step grandfather (Mr G), or any other person agreed upon by the applicant, first respondent, and interveners;

   (b)The applicant shall ensure the delivery of C to the home of the maternal grandmother at the commencement of the time he is to spend with the first respondent; and

   (c)The first respondent shall ensure the return of C to the home of the applicant at the conclusion of the time he spends with the first respondent.

3. For the purpose of implementing Order 7(b) hereof:

   (a)The applicant shall ensure the delivery of C to the home of the interveners at the commencement of the time he is to spend with the interveners; and

   (b)The interveners shall ensure the return of C to the home of the applicant at the conclusion of the time he spends with the interveners.

Spending Time (D and F)

1. The applicant, first respondent, and interveners shall take all reasonable steps to ensure that D and F spend time with the first respondent (unless otherwise agreed between the interveners and first respondent):

   (a)       From 1.30 pm until 5.30 pm each Saturday;

   (b)       From 1.30 pm until 5.30 pm on Mother’s Day; and

   (c)       From 3.30 pm until 7.30 pm on Christmas Day.

2. For the purpose of implementing Order 10 hereof:

   (a)The time spent by D and F with the first respondent shall be supervised by either the maternal grandmother (Ms A), maternal step grandfather (Mr G), or any other person agreed upon by the applicant, first respondent, and interveners;

   (b)The interveners shall ensure the delivery of D and F to the home of the maternal grandmother at the commencement of the time they are to spend with the first respondent; and

   (c)The first respondent shall ensure the return of D and F to the home of the interveners at the conclusion of the time they spend with the first respondent.

Communication

1. Unless otherwise agreed between the parties:

   (a)Each Wednesday at 6.00 pm the interveners shall telephone the applicant and the applicant and interveners will then take all reasonable steps to ensure that the children communicate with one another;

   (b)Each Wednesday at 6.15 pm the first respondent shall telephone the interveners and the interveners will then take all reasonable steps to ensure that D and F communicate with the first respondent; and

   (c)Each Wednesday at 6.30 pm the first respondent shall telephone the applicant and the applicant will then take all reasonable steps to ensure that C communicates with the first respondent.

Miscellaneous

1. Pursuant to s 68B of the Family Law Act, the second respondent is restrained from entering upon or approaching within 100 metres of the first respondent’s residence.

2. The interveners are restrained from causing or permitting C, D or F to remain in the care or physical presence of the second respondent for longer than 12 consecutive hours without supervision by either intervener.

3. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

4. Each party is restrained from denigrating any other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating any other.

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

6. The applicant shall authorise and request the principal of any school attended by C to provide to the first respondent and interveners, at their expense, copies of all school reports and school photograph order forms relating to C.

7. The interveners shall authorise and request the principal of any school attended by D and F to provide to the first respondent, at her expense, copies of all school reports and school photograph order forms relating to D and F.

8. Leave is granted to the parties to furnish sealed copies of these orders to the principals of any schools attended by the children.

9. The applicant, second respondent, and interveners (but not the first respondent) shall forthwith inform one another and the first respondent, and keep them informed, in writing of their respective current residential address and contact telephone number.

10. The first respondent shall forthwith inform the applicant and interveners, and keep them informed, in writing of the maternal grandmother’s residential address and contact telephone number.

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

12. Costs are reserved for 28 days.

13. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3341 of 2012

Mr Ibbott

Applicant

And

Ms E Chaconas

First Respondent

And

Mr B Chaconas

Second Respondent

And

Mr J Chaconas & Ms P Chaconas

Interveners

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Three children are the subject of these proceedings. The eldest is aged four years and the other two are twins aged three years.

2. The first respondent is the mother of all three children (“the mother”).

3. The applicant is the father of the eldest child (“the applicant”).

4. The second respondent is the father of the twins (“the respondent”).

5. The interveners are the paternal grandparents of the twins (“the interveners”, or individually, “the paternal grandmother” and “paternal grandfather”).

6. The respondent eventually subjugated his own aspirations for the children to the proposals of the interveners, leaving the applicant, mother, and interveners to contest all aspects of the children’s care, including most importantly, the allocation of parental responsibility for the children, their residence, and the time and circumstances under which they should spend time with the parties.

Short history

1. The applicant and the mother began a relationship in 2008 which ended in late 2009, but they did not cohabit. The eldest child was born to their relationship in May 2009 and he remained primarily resident with the mother following separation.

2. The mother and the respondent began their relationship in early 2010. They commenced cohabitation in June 2010, married in December 2010, and finally separated in December 2012. The twins were born to their relationship in January 2011 and they remained primarily resident with the mother following separation.

3. The applicant commenced proceedings against the mother seeking orders in respect of only the eldest child in December 2012. For the preceding three years the applicant and mother generally made satisfactory arrangements between themselves for the care of the eldest child. Interim consent orders were made between them on 20 December 2012 providing for the eldest child to live with the mother upon condition that they resided with a maternal aunt, but were later amended in April 2013 to require their residence with the maternal grandmother instead. The orders provided for the child to spend time with the applicant for four nights per fortnight.

4. The mother commenced separate proceedings against the respondent in respect of only the twins in January 2013, just after the mother’s separation from the respondent and just after the other proceedings had been commenced against her by the applicant. Interim consent orders were made between the mother and respondent on 24 January 2013 providing for the twins to live with the mother and to spend time with the respondent each alternate weekend under the supervision of the paternal grandfather. By further orders, made on 7 February 2013, the supervised interaction between the twins and the respondent was expanded to four nights per fortnight and the paternal grandmother was included as a supervisor.

5. Both sets of proceedings were classified into the Court’s Magellan protocol because of the multifarious allegations of the parties’ sexual and physical abuse of the children.[1] The two sets of proceedings were consolidated for the purposes of hearing but were later de-classified from the Magellan protocol because the parties resiled from their former allegations against one another of actual or potential child abuse.[2]

   [1] Notations A-B made on 20 December 2012 in file NCC 3341/2012;

   Notation A made on 24 January 2013 in file NCC 103/2013

   [2] Order 1 and Notation A made on 12 April 2013

6. The interveners were granted leave to intervene in the proceedings in June 2013 following the release of the first Family Report in which reservations were expressed by the Family Consultant about the parenting capacity of both the mother and the respondent.[3] A second Family Report was therefore procured to assess the capacity of the interveners to provide residential care for all three children, or alternatively, at least the twins.

   [3] Notation B made on 12 April 2013

Proposal and evidence of applicant

1. The applicant eventually abandoned the orders proposed in his Amended Application filed on 5 September 2013 and instead adopted an amalgam of the orders proposed by the interveners and Independent Children’s Lawyer as his proposal.

2. He proposed that the eldest child live with him and that he have sole parental responsibility for the child. He said in evidence that, in the event his proposal for residence of the eldest child was dismissed, his next preference was for all three children to live together in the care of the interveners. His least favoured option was for all three children to live with the mother.

3. The applicant wanted the eldest child to spend about four hours each week with the mother, provided they are supervised by the maternal grandmother.

4. The applicant was disinterested in the orders made in respect of the twins, but was generally supportive of the orders proposed for them by the interveners.

5. Curiously, the applicant expressly and strongly opposed the order requested by the Independent Children’s Lawyer forbidding any party from administering physical discipline to any of the children.[4]

   [4] Exhibit ICL2, Order 9

6. The applicant relied upon:

   (a)His affidavit filed on 4 December 2013;

   (b)His affidavit filed in Court on 29 January 2014; and

   (c)The affidavit of Ms I, the applicant’s maternal aunt, filed on 11 December 2013.

Proposal and evidence of mother

1. The mother adhered to the orders proposed in her Amended Response filed on 12 September 2013, generally proposing that:

   (a)All three children continue to live with her;

   (b)She and the applicant share parental responsibility for the eldest child;

   (c)The eldest child spend substantial and significant time with the applicant;

   (d)She have sole parental responsibility for the twins; and

   (e)The twins spend substantial and significant time with the respondent, provided they and the respondent are supervised by the interveners.

2. The mother relied upon:

   (a)Her affidavit filed on 9 December 2013;

   (b)The affidavit of Ms A, the maternal grandmother, filed on 9 December 2013; and

   (c)The affidavit of Mr G, the maternal step grandfather, filed on 15 January 2014.

Proposal and evidence of respondent

1. The respondent proposed the orders set out in his Amended Response filed on 13 September 2013 providing for:

   (a)The eldest child to live with the applicant;

   (b)The twins to live with the interveners and for the interveners to have sole parental responsibility for them;

   (c)The twins to spend substantial and significant time with the mother, subject to their supervision by the maternal grandmother;

   (d)No specific orders concerning the twins’ interaction with him, since he expected that he and the interveners would reach agreement without the need for any order (because he told the Family Consultant he expected to see the twins daily even if he did not live with them and the interveners)[5]; and

   (e)The eldest child to spend time with him, the interveners, and the twins each fourth weekend.

   [5] Second Family Report, para 11

2. The respondent failed to file any affidavit in accordance with procedural orders.[6] He previously filed an affidavit on 6 February 2013, but that was filed in support of his proposal for interim orders in respect of the twins, which proposal merged in the interim consent orders made on 7 February 2013. Notwithstanding, he was permitted to rely upon that affidavit, for otherwise he had no evidence to adduce.

   [6] Orders 4 and 7 made on 29 August 2013

Proposal and evidence of interveners

1. The interveners pressed for the orders set out within a minute of orders they tendered[7] and they abandoned the proposal set out within their Amended Response filed on 13 September 2013. Essentially, their proposal was for:

   (a)Them to have equal shared parental responsibility for the twins;

   (b)The twins to live with them;

   (c)The twins to spend about four hours each week with the mother, provided they are supervised by the maternal grandmother;

   (d)The twins to spend time with the respondent at their discretion;

   (e)The eldest child to live with the applicant; and

   (f)The eldest child to spend time with them one full day each month.

   [7] Exhibit INT6

2. The interveners relied upon their individual affidavits filed on 6 December 2013.

3. The evidence of at least the paternal grandfather carries little weight because he deposed:[8]

   I have read [the paternal grandmother’s] affidavit affirmed today, and say that I agree with the contents therein, to the best of my knowledge and belief.

   [8] Paternal grandfather’s affidavit, para 7

4. It necessarily follows from the paternal grandfather’s admission that he first read and then adopted the paternal grandmother’s evidence, thereby compromising the independence and reliability of his evidence in chief. There is no suggestion the paternal grandmother colluded in that process.

5. Witnesses should not read another witness’ affidavit and simply adopt that evidence as their own. The evidence of witnesses should be independently collated and recorded in their affidavits in the form recollected by the witnesses individually. Discrepancies in evidence are to be expected, not artificially eradicated. In so far as they participate in the process, lawyers are duty bound to preserve the integrity of evidence (see NSW Solicitors Rule 25; Australian Barristers Rules 69-71).

6. The following cautionary note of the NSW Court of Appeal is instructive (see Day v Perisher Blue (2005) 62 NSWLR 731 at 746):

   It has long been regarded as proper practice for legal practitioners to take proofs of evidence [or affidavits] from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case [where witnesses conferred], it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other to ensure, so far as possible, that in giving evidence the defendant’s witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper.

1. I doubt any mischief was intended by the interveners or their solicitor, but what the paternal grandfather did necessarily deprives his evidence of weight.

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer expressly refrained from proposing any orders until the evidence was tested. At the commencement of final submissions he tendered a minute of orders,[9] which proposed that:

   (a)The applicant have sole parental responsibility for the eldest child, who would live with him;

   (b)The interveners have equal shared parental responsibility for the twins, who would live with them;

   (c)All three children spend time together with the mother for about four hours each week, provided they are supervised by the maternal grandmother;

   (d)The twins spend time with the respondent at other times determined by the interveners, provided they spend any overnight time in the same household as the interveners; and

   (e)The eldest child spend time with the interveners and the twins together for about four hours fortnightly.

   [9] Exhibit ICL2

Additional evidence

1. In addition to the evidence adduced by the parties, they and the Independent Children’s Lawyer relied upon the evidence contained within:

   (a)The first Magellan Report, dated 25 January 2013, furnished to the Court by the NSW Department of Family and Community Services (“the Department”) in respect of the eldest child;

   (b)The second Magellan Report, dated 21 February 2013, in respect of the twins;

   (c)The first Family Report, dated 4 April 2013, prepared by the Family Consultant; and

   (d)The second Family Report, dated 15 August 2013, also prepared by the same Family Consultant.

2. The Family Consultant was cross-examined and her evidence proved to be measured, thoughtful and logical. I accept it in almost all respects.

Applicable legal principles

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

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

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

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

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

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

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

Best interests of the children – primary considerations

Section 60CC(2)(a)

1. There was no debate in the case about the quality of the children’s respective relationships with each of their natural parents.

2. The eldest child has meaningful relationships with both the applicant and mother from which he does, and will continue to, derive benefit.

3. The twins have meaningful relationships with both the mother and respondent from which they do, and will continue to, derive benefit.

Section 60CC(2)(b)

1. The furore which formerly permeated the proceedings about the children’s possible sexual and physical abuse largely, but not completely, dissipated.

2. Aside from one lingering allegation about the respondent’s physical abuse of the eldest child, the debate generally focussed on the potential for the children to suffer harm through either their neglect or their exposure to family violence between the mother and respondent.

3. It is convenient and preferable to separately consider those issues.

Alleged physical abuse

1. There was a factual dispute in the litigation about whether the respondent struck the eldest child with a broom, thereby causing a bruise injury to his thigh.

2. While the applicant admitted his confusion over the precise date, he alleged the child’s injury was observed during November 2012 when the child showed him the bruise and said “[the respondent] broom”, from which the applicant inferred the child meant the bruise was caused by the respondent striking him with a broom.[10]

   [10] Applicant’s first affidavit, paras 59-60, 63-64

3. When the mother became aware of the bruise she asked the eldest child how it occurred and the child similarly replied “[the respondent] broom”. Unlike the applicant though, she seemingly regarded his reply as equivocal and did not immediately regard it as an allegation the respondent had struck him with a broom.[11]

   [11] First Family Report, para 75

4. The respondent alleged the bruise on the eldest child’s thigh was not apparent until December 2012, when the child visited the respondent and his parents from the mother’s home. He denied striking the child and causing the injury. He alleged the mother explained to him the child’s injury was caused by him falling while playing with a dog.[12]

   [12] Respondent’s affidavit, para 27

5. The interveners supported the respondent’s rebuttal of the allegation of physical abuse. They told the Family Consultant they observed the bruise of the eldest child’s leg when he was delivered to them by the maternal grandmother whilst the respondent was still at work. When they questioned the child about the bruise the child replied “[I] fall down”.[13]

   [13] First Family Report, para 124

6. The conflicting evidence was not explored at all in the cross-examination of any of the witnesses and so the veracity of their evidence could not be rationally compared. On the state of the evidence, no finding could safely be made on the balance of probabilities that the respondent struck the eldest child, with or without an implement, and caused the injury.

7. However, even if the respondent did not assault the eldest child, there was a surfeit of evidence to prove his occasional physical intimidation of the child, which potentially caused the child to suffer some psychological harm.

8. The mother asserted she had not witnessed the respondent being abusive to the eldest child, but did believe the respondent was “heavy-handed” in his physical discipline of the eldest child, causing him to appear frightened of the respondent.[14] She believes the eldest child “has come out of his shell” now he no longer associates with the respondent.[15] The maternal aunt also believed the eldest child was “scared” of the respondent[16] and the maternal grandmother believed the eldest child was “terrified” of the respondent.[17]

   [14] First Family Report, paras 73-74; Second Family Report, paras 10, 44

   [15] First Family Report, para 80

   [16] First Family Report, para 108

   [17] First Family Report, para 97

9. The respondent admitted to the Family Consultant he formerly disciplined the eldest child by smacking him, which, on one occasion at least, was “a bit too hard” and caused the respondent to be “ashamed” of himself.[18] The respondent earlier told the Department the eldest child was smacked “every 4-5 days”.[19]

   [18] First Family Report, para 49

   [19] First Family Report, para 135

10. Curiously, however, when the eldest child was told in March 2013 of his imminent meeting with the respondent in the presence of the Family Consultant he became excited and, when subsequently introduced to the respondent, happily hugged him and engaged him in play.[20] Any fear he felt about the respondent must therefore have abated to some extent. Of course, the child’s observed demeanour towards the respondent does not mean he was not harshly treated by the respondent, but it does tend to suggest the limitation of any harm he suffered through such treatment, for otherwise his fear would likely overwhelm his affection for the respondent.

    [20] First Family Report, para 152

11. The applicant, mother, and respondent all admitted to occasional corporal punishment of the children. While community standards about corporal punishment have altered so that it is now generally discouraged as a legitimate form of discipline, the law does not yet equate corporal punishment to physical abuse. For example, the legislation of NSW still permits corporal punishment in limited forms as “lawful correction” (see s 61AA Crimes Act 1900 (NSW)). Corporal punishment may be, but is not necessarily, “abuse” (s 4(1)).

12. Having regard to the past disciplinary standards employed by the applicant, mother, and respondent, and the lack of evidence about their intention to modify such standards, it is likely they would continue to use corporal punishment upon the children from time to time if not otherwise restrained. Indeed, the applicant instructed his counsel to argue forcefully for his continued entitlement to punish the eldest child in that way.

13. The evidence demonstrates that the respondent would probably resort to such punishment more frequently and with greater force than the applicant and mother, but even so, the evidence still does not rationally permit a finding that there is an unacceptable risk such punishment would amount to “abuse”, or further, that any of the children would suffer physical or psychological harm as a consequence.

14. The best remedy to eradicate any concern about the possible occurrence of abuse through excessive corporal punishment is the imposition of an injunction precluding its use in the discipline of any of the children, consistently with the sensible suggestion of the Independent Children’s Lawyer. I reject the applicant’s puzzling resistance to such restraint. The applicant holds himself out as a competent parent and competent parents should now be able to discipline young children without resort to violence.

Family violence

1. The mother described her relationship with the respondent as being one characterised by his intimidation of her.[21] The mother’s allegations against the respondent of family violence were not recently manufactured for forensic effect in these proceedings, since she made contemporaneous complaints about the respondent’s mistreatment of her to welfare authorities during their relationship.[22]

   [21] First Family Report, para 68

   [22] First Family Report, para 69

2. Surprisingly, the respondent audaciously deposed:[23]

   I have never been violent toward other people and have no criminal history in this regard. I am a “non-confrontational” type of person.

   [23] Respondent’s affidavit, para 42

3. Of course, that evidence was palpably false. The respondent was convicted and sentenced for his assault of the mother only a few months before he deposed to that evidence in his affidavit in February 2013. In October 2012 the respondent was charged for and convicted of the mother’s assault, resulting in the imposition of a good behaviour bond for a period of 12 months and an apprehended violence order for a period of two years.[24] By his own admission, the respondent’s judgment at the time of the assault was not clouded by intoxication.[25] The respondent had no satisfactory explanation for why he gave false evidence in his affidavit.

   [24] First Family Report, paras 45, 47, 71; Exhibit M3; Exhibit M5

   [25] Respondent’s affidavit, para 13

4. The Family Consultant was not seriously challenged about her opinion that the respondent appeared to have “used coercive and controlling violence” against the mother in the form of “intimidation, isolation and financial control”.[26]

   [26] First Family Report, para 163

5. It is common ground the eldest child witnessed most, if not all, of the frequent loud and aggressive encounters between the mother and respondent during their relationship. The eldest child was observed to be avoidant of and cower from the conflict. He was plainly emotionally disturbed by his exposure to such family violence. Although the questions in cross-examination were specifically framed in terms of the eldest child’s exposure to such situations, inferentially, the twins were also probably so exposed on many occasions.

6. There can be no doubt the respondent perpetrated “family violence” (s 4AB(1)) towards the mother in the past, that the children were often exposed to it, and that they suffered some degree of psychological harm as a consequence. The pertinent inquiry though, pursuant to s 60CC(2)(b) of the Act, is the level of the risk of the children’s future exposure to such form of harm. Integral to that inquiry is any reformation experienced by the respondent.

7. The respondent did not attend the therapeutic anger management program he was ordered to attend in January 2013,[27] but he did attend upon some other counselling service.[28] He said in cross-examination he began that counselling in about February 2013 and has since been counselled weekly. Some of the counselling records are in evidence,[29] but perusal of them offers no real re-assurance about the respondent’s rehabilitation. Despite such therapeutic intervention, the evidence convincingly proves the respondent has experienced no, or alternatively little, rehabilitation.

   [27] Second Family Report, para 91

   [28] Respondent’s affidavit, paras 34-35; Second Family Report, para 39

   [29] Respondent’s affidavit, Annexure A; Exhibit ICL1

8. That conclusion is easily reached, most importantly, from the respondent’s own admission. He is seemingly unburdened by any sense of remorse. He said in cross-examination he still regards himself as not having previously been a “violent” or “confrontational” person. Axiomatically, no rehabilitation is feasible unless he is genuinely able to acknowledge the need for reformation. If the respondent does not believe he ever was violent or confrontational then, from his perspective, there is no problem to fix.

9. The Family Consultant personally witnessed and commented upon the respondent’s belligerence and anger during her consultations with him as recently in August 2013.[30] If he was unable to contain the volatility of his emotions even in the sanctity of the Court precincts he will probably not be able to do so when he feels provoked in an environment where no restraint or decorum is expected.

   [30] Second Family Report, paras 31, 65

10. The breadth of the risk of harm to the children needs, however, to be kept in context. The respondent being prone to belligerence and anger is one thing, but his continuing commission of family violence is quite another. There was no suggestion, either in the evidence or during submissions, that the respondent had or would commit “family violence” towards any person other than the mother. The respondent still seems pre-occupied with his former romantic attachment to the mother and her rebuttal of any continuing relationship with him is liable to anger or frustrate him. The prospect of his perpetration of further family violence towards the mother therefore remains, but the risk of the children’s harmful exposure to such family violence is satisfactorily attenuated if the mother and respondent are kept separated.

11. That outcome can be ensured, or at least promoted, in one of two ways. An injunction could be made endorsing, or even extending, the terms of the current apprehended violence order so as to preclude interaction between the mother and respondent for an indefinite period. Alternatively, the parenting orders could be structured in such a way as to minimise the prospect of the respondent’s interaction with the mother at times the children are exchanged between the parties.

12. The former is a preferable course to the latter and an order is made prohibiting the respondent’s attendance at or near to the mother’s home. That is because of the respondent’s continuing romantic interest in the mother, notwithstanding her clear renunciation of their relationship. In January 2013 the respondent was consensually restrained from communicating with the mother in any way,[31] but in March 2013 the respondent told the Family Consultant he still coveted reconciliation with the mother and he wanted the restraint quashed, as it thwarted the continuation of their relationship.[32] The evidence demonstrates that the respondent continued his attempts to maintain contact with the mother.[33] Even as recently as August 2013 the respondent told the Family Consultant he wanted to know the mother’s residential address.[34] The Family Consultant was concerned about the respondent’s behaviour and recommended an embargo on the mother having to disclose her address and telephone number to the respondent.[35] An order to that effect is also made.

    [31] Order 1.4 made on 24 January 2013

    [32] First Family Report, para 58

    [33] First Family Report, paras 72, 87, 121-122, 161-162;

    Affidavit of Ms I, paras 20-21

    [34] Second Family Report, paras 11, 65

    [35] Second Family Report, paras 92, 111

Neglect

1. The central theme of the litigation was the alleged serious neglect of the children’s needs – firstly by both the mother and the respondent during the currency of their relationship and, latterly, by the mother following her separation from the respondent.

2. Although some of the instances of neglect may be regarded as individually unremarkable, in aggregation they are cause for concern.

3. Significantly, at least two of the children have special needs, so the quality of their care is even more critical. One of the twins suffers from global development delay and blindness. He requires assistance from the Royal Institute for Deaf and Blind Children (RIDBC).[36] The eldest child also required paediatric intervention, which resulted in his receipt of at least speech therapy and dietician assessment. He may also have some developmental delay and he is awaiting an appointment for “chromosome testing”.[37]

   [36] First Family Report, para 142

   [37] First Family Report, paras 133-134; Second Family Report, paras 48, 80; Applicant’s first

   affidavit, paras 6, 125-128

4. Neither the mother nor respondent can drive, so they were and are reliant upon public transport unless members of their extended families provide transport for them and the children. Unfortunately, many of the children’s past appointments with clinicians and services have been missed, which the mother did not acknowledge.[38] The Department was concerned about the level of the mother’s proactivity and therefore tended to rely upon the respondent to ensure that their appointments were met.[39] However, the Department’s confidence in him seems to have been misplaced because the respondent told the Family Consultant he simply left the mother with responsibility to ensure the children attended most of their various appointments.[40]

   [38] First Family Report, para 81

   [39] First Family Report, para 134

   [40] First Family Report, paras 54, 146

1. As the Family Consultant correctly observed, irrespective of the reasons, the children’s needs were not being met by the mother and respondent when they lived together.[41] Their collective failure to ensure the children’s regular and reliable access to clinicians and services hindered closer surveillance of the level of the care they afforded the children, which was demonstrably unsatisfactory.

   [41] First Family Report, paras 91, 147

2. During late 2012, one of the twins needed to be hospitalised twice because of his failure to thrive. The mother and respondent were not feeding him enough formula. The child also missed dietician and physiotherapy appointments and he was not taken to the RIDBC for some months.[42]

   [42] First Family Report, paras 143-144, 159; Exhibit A3; Respondent’s affidavit, para 32

3. Following the separation of the mother and respondent in December 2012, incidents of neglect continued to occur and medical complaints still continue to afflict the children without apparent abatement. The mother conceded she ceased taking the eldest child to speech pathology appointments because she was then living some distance away from Newcastle with her sister and could not arrange the child’s transport to his appointments. That situation was not rectified until the mother and children moved back to the Newcastle district some months afterwards. The mother conceded how unsatisfactory that was.

4. In January 2013 one twin nearly drowned in a swimming pool through lack of adequate supervision by the mother. The child was found unconscious floating in the pool and he needed to be resuscitated and hospitalised.[43] Luckily, he seems to have fully recovered.[44] The mother and respondent had separated by then so the responsibility for the children’s proper supervision at that point fell completely to the mother. It is beyond argument that the supervision she provided was lamentably inadequate.

   [43] First Family Report, paras 13, 138

   [44] Second Family Report, para 82

5. Throughout 2012 and 2013 the children all periodically suffered from lesions on their skin which were described as “school sores”. The frequency of their infections is mildly concerning, but of most concern was the indisputable fact that in 2013 the mother mistakenly gave the applicant the wrong medication to administer to the eldest child, and further, that she administered the incorrect dosage of medication to at least one of the children.[45] The Family Consultant understandably found that alarming.[46]

   [45] Applicant’s first affidavit, paras 86, 104-112

   [46] Second Family Report, paras 75, 98

6. All three children have suffered superficial injuries in the form of abrasions, bruises, and bites. The mother was generally dismissive of such injuries,[47] but as the paternal grandmother observed, the frequency and extent of such injuries are not easily reconciled as an ordinary incident of properly supervised play.[48] The interveners documented injuries to the children on most of their visits.[49]

   [47] Second Family Report, paras 56

   [48] Paternal grandmother’s affidavit, paras 53-54

   [49] Paternal grandmother’s affidavit, paras 30-51

7. In December 2013 one of the twins was delivered to the interveners with an untreated severe ear infection, of which the mother said nothing.[50]

   [50] Paternal grandmother’s affidavit, para 52

8. In late December 2013 one of the twins was delivered to the interveners with a bite mark on his left bicep.[51] It was acknowledged the bite mark was most probably inflicted by the eldest child, which was not the first time that had occurred.

   [51] Exhibit INT1

9. It was also subsequently discovered that the child had suffered a fractured left clavicle. There was factual dispute about whether the fracture was suffered by the child before or after his delivery into the care of the interveners, but most probably it was before. I accept the mother, maternal grandmother, and maternal step grandfather were all honestly ignorant of the child favouring his left arm at the time he was delivered to the interveners, but I also accept that the interveners quickly became conscious of the soreness felt by the child in his left shoulder. They arranged a medical appointment for him as soon as they were able, at which time they reported to the doctor that the child came to them presenting with “a human bite…not moving his L arm” for which he was referred for x-ray. The fracture came to light following a second x-ray.[52]

   [52] Exhibits INT3 and INT4

10. The interveners denied the child did, or could have, suffered the fracture in the short period between him being delivered into their care and his presentation to the doctor. In all probability the left clavicle fracture was suffered by him contemporaneously with the bite inflicted to his left bicep while in the mother’s care and she failed to notice the child suffered from left shoulder soreness. The mother’s suggestion to the doctor that the fracture injury was sustained after the child was delivered to the interveners was merely conjecture. She relied on what she was told by the maternal step grandfather about his conversation with the interveners to infer the child was injured after he was delivered to them, but the maternal step grandfather admitted in cross-examination the interveners had not made any admission to him that the child was injured in their care. Rather, he only assumed that from the tenor of their conversation.

11. In late January 2014 one of the twins was delivered to the interveners with a blemish on his left shin which appears consistent with a burn injury. The interveners photographed the injury.[53] The mother and maternal grandmother both denied the child was injured in that way when he was delivered to the interveners and said the child returned from the visit with the injury, but I do not accept that evidence. The maternal grandmother admitted they did not raise the injury with the interveners, but rather, the interveners raised it as a concern with them. The interveners would not likely have done so if the child suffered the injury while in their care. More probably they raised it with the maternal family because of their concern rather than as a cunning tactic to deflect blame from themselves.

    [53] Exhibit INT2

12. Despite the litany of concerns detailed by the applicant and interveners, the mother contended she had successfully improved her parenting performance so as to allay concerns about her future proper care of the children.[54] A series of certificates verifying her parenting tuition throughout 2013 were tendered in evidence.[55] Additionally, there are objective indicia of her now conducting a basically functioning household,[56] there has been marked improvement in the children’s attendances at their medical appointments, and the Department has terminated its supervision of her.[57]

    [54] Mother’s affidavit, paras 11-12

    [55] Exhibit M2

    [56] Mother’s affidavit, para 14

    [57] Second Family Report, paras 48, 51

13. The mother’s credible efforts at improvement are a testament to her resolve, of which she can be justifiably proud. Nonetheless, the Family Consultant remains wary of the mother’s capacity to maintain the improvement in the absence of the perpetual scrutiny engendered by this litigation.[58] Despite the mother’s gains in some respects, the medical afflictions and injuries suffered by the children, most probably through inadequate supervision and attention, have continued to occur largely unabated. The mother’s assistance from the wider maternal family has not put an end to that problem.

    [58] Second Family Report, para 90; First Family Report, paras 171-173

14. The circumspection of the Family Consultant about the permanence of the mother’s improvement is well founded because of the mother’s lack of insight into the extent of the problem. She told the Family Consultant that she manages the children without any family assistance,[59] and further, she said in cross-examination she did not believe she ever needed assistance with the children in the past. She clearly did. Her failure to recognise it exemplifies the superficiality of her perception. Even in the relatively short period of the Family Consultant’s formal observation of the children with the mother in contained circumstances, the mother found supervision of the three children “very demanding”.[60]

    [59] Second Family Report, para 55

    [60] First Family Report, para 155

15. Although the Department has suspended its supervision of the mother and the children, inferentially, that is because the Department considers her supervision by members of the maternal family to be sufficient. The Department records reveal that without the “significant assistance” of the maternal family the mother would struggle to consistently meet the daily needs of the children.[61]

    [61] First Family Report, para 93; Second Family Report, para 99

16. Even members of the maternal family concur in that assessment of the mother. The mother’s sister previously reported to the Department in January 2013 her belief that the mother “required constant supervision”.[62] The maternal grandmother also explained to the Family Consultant the mother’s unfortunate cognitive limitations and her perceived inability to cope with stressful situations.[63] Those concerns replicate comments formerly made by members of the maternal family to the mother’s doctor in 2009.[64] I reject the maternal grandmother’s assertion in cross-examination that concerns about the mother’s parenting capacity can now be safely consigned to the past.

    [62] Exhibit INT5

    [63] First Family Report, para 98

    [64] Exhibit A1

17. The evidence merits a conclusion that the children will continue to experience inferior care if left to reside with the mother in isolation from members of the maternal family, such as the maternal grandmother. Her lack of cognitive acuity and passive level of supervision are liable to leave the children at continued risk of physical or psychological harm. While the risk certainly exists, the evidence does not demand a finding that it is so virulent it is incapable of attenuation by supervision. By comparison, no such risk exists with the applicant and interveners as alternate residential carers for the children.

Best interests of the children – additional considerations

1. Aside from pervasive concerns about the children’s neglect, there are other signs indicating impingement of the mother’s parenting capacity.

2. Records of the Department suggest the mother displayed little emotion or interaction with the twin who nearly drowned whilst he was treated in hospital.[65] Her apparent lack of empathy was understandably a worry to the Department. The father fared no better in the Department’s assessment. He too showed little emotion and was intent on intimidating the mother. However, significantly, he is no longer pressing for an order for the children to live with him. His parenting proposals manifest acknowledgement that he is presently ill-equipped to offer them residential care.

   [65] First Family Report, para 14; Exhibit M4

3. The mother also failed to comply with orders of the Court requiring her and the children to live with members of the maternal family, which orders were expressly intended to ensure proper supervision of the children. Interim orders required them to firstly live with the maternal aunt[66] and then later with the maternal grandmother.[67]

   [66] Order 1.1 made on 20 December 2012

   [67] Order 5 made on 12 April 2013

4. While bound to live with the maternal aunt, the mother moved to live with another maternal aunt and then the maternal grandmother.[68]

   [68] First Family Report, paras 62, 160

5. While bound to live with the maternal grandmother, the mother moved house to live on her own.[69]

   [69] Second Family Report, paras 8, 43, 58; Notation C made on 5 June 2013;

   Mother’s affidavit, para 14.7

6. The mother and maternal grandmother attempted to dampen concern by explaining the maternal grandmother moved to live in the mother’s home so as to comply with the Court’s orders, but their evidence was irreconcilable. It was also irreconcilable with the evidence of the maternal step grandfather.

7. The mother said in cross-examination that the maternal grandmother stays at her house every night of the week except Sunday, when they and the children all stay at the maternal grandmother’s house. That arrangement facilitated the twin’s collection from them on Monday mornings by the interveners.

8. The maternal grandmother told the Family Consultant,[70] and gave evidence to the same effect, that she, the mother, and children live at the mother’s home about five nights per week and at her home the other two nights per week. She conceded she sometimes failed to sleep in the same house overnight as the mother and children, but said that rarely occurred.

   [70] Second Family Report, paras 8, 58

9. The maternal step grandfather contradicted them both. He said the maternal grandmother usually only sleeps at the mother’s home a couple of nights per week. For the majority of nights each week, the maternal grandmother stays at her own home with him and the mother and children stay separately at their own home. I accept the accuracy of his evidence since, at least in respect of that issue, it was unexpected. It had the obvious appearance of spontaneous candour. The evidence of both the mother and maternal grandmother was therefore false, compounding the inconsistency between them.

10. The mother and maternal grandmother were and are clearly complicit in the contravention of the Court’s orders, which orders were made with the consent of the mother and with the knowledge of the maternal grandmother. If they cannot be trusted to adhere to the orders in those circumstances there must be grave doubts about their willingness to adhere to any similar orders once the litigation is concluded, particularly since the mother deposed to not wanting the maternal grandmother to live with her.[71] Those circumstances all but rule out the prospect of an order for the children to remain living with the mother on condition she maintains their residence with the maternal grandmother. Although the maternal grandmother said in evidence she would observe any final order requiring her supervision of the mother, objectively, that seems quite unlikely if the orders go so far as to require her permanent residential supervision of the children with the mother. Her compliant supervision of the mother and children for shorter defined periods is much more likely.

    [71] Mother’s affidavit, para 14.6

11. Even if, as the mother asserted, the applicant consented to her moving into her own home in breach of the interim orders,[72] no such consent was forthcoming from the respondent and interveners. In any event, the applicant credibly asserted he did not consent to the mother’s move and only admitted he was kept appraised of it.[73]

    [72] Mother’s affidavit, para 14.7

    [73] Applicant’s first affidavit, paras 12-13

12. Notwithstanding their past privations, the children are fortunate to have parents and grandparents who all love and cherish them. The children enjoy warm relationships with extended members of both their maternal and paternal families.[74]

    [74] First Family Report, paras 18, 149-155, 167; Second Family Report, paras 87-89

13. The eldest child was observed by the Family Consultant to be firmly attached to the applicant, and furthermore, the applicant was apparently attuned to his needs.[75] The applicant demonstrated commitment to enhance his parenting capacity by attending a post-separation parenting course,[76] as recommended for him by the Family Consultant.[77] The Family Consultant regarded the residential environment offered by the applicant to the eldest child as “stable, safe, calm and very settled”.[78] The applicant undoubtedly has the capacity to cater to the child’s emotional and intellectual needs. It was not suggested otherwise.

    [75] First Family Report, para 149

    [76] Applicant’s first affidavit, para 146

    [77] Second Family Report, para 97

    [78] First Family Report, para 169

14. The applicant also has the capacity to adequately provide for the child’s physical needs. He was formerly prepared to abandon his employment to assume residential care of the eldest child,[79] but that is now unnecessary because he is presently unemployed. He lives with a relative and the house is large enough to cater for the child.[80] The mother deposed to the applicant not taking proper care of the eldest child,[81] but I pay that evidence little heed. It was not consistent with the flavour of her comments to the Family Consultant[82] or her oral evidence and the applicant was not challenged in cross-examination with any suggestion that his care of the eldest child is deficient.

    [79] First Family Report, para 32

    [80] Applicant’s first affidavit, paras 140-142

    [81] Mother’s affidavit, paras 29-31

    [82] First Family Report, para 66

15. By comparison, whilst the eldest child certainly loves and is attached to the mother,[83] she encounters difficulty in providing the child with the same degree of stability, structure and routine.[84] She has difficulty coping with the needs of all three children.

    [83] First Family Report, para 167

    [84] First Family Report, para 167

16. While the interveners would be prepared to assume the residential care of all three children if required by the Court, their expressed preference is for only the twins to live with them. They envisage the eldest child living with the applicant and visiting them and the twins periodically. Similarly, the applicant does not envisage the twins living with him. He foresees them living with, preferably, the interveners or, otherwise, the mother.

17. In such circumstances, the applicant arguably offers the eldest child the best residential option. Of course, that result would entail separation of the eldest child from the twins. Such an arrangement should not be countenanced lightly, since the sibling relationships are strong.[85]

    [85] First Family Report, para 167

18. The Family Consultant expressly confronted and gave anxious consideration to the dilemma of separating the eldest child from the twins. In the Family Report she acknowledged it is uncommon to consider the separation of such young siblings, but recognised the benefits for the eldest child in living alone with the applicant and having his needs prioritised in that environment.[86] Her implicit recommendation for separation of the eldest child from the twins was made much more explicit in her cross-examination. However, she still recognised the strong need to ensure the siblings spend regular and frequent time together.[87]

    [86] First Family Report, para 169

    [87] Second Family Report, para 96

19. As for the twins, they appear to have meaningful relationships with the interveners.[88] There was no suggestion the interveners were not able to competently meet all of the twins physical, intellectual and emotional needs. Their parenting capacity is superior to that of the mother.

    [88] Second Family Report, paras 87-89

20. The Family Consultant thought the interveners had carefully considered the long-term commitment required of them in order for the twins to live with them,[89] but the evidence justifies an abiding concern about their attitude.

    [89] Second Family Report, para 18

21. The interveners, despite their intelligence, lack insight into the limitations of the respondent’s parenting capacity. Surprisingly, they believed all allegations against the respondent would be proved false,[90] but the contrary was true. All of the allegations about the respondent’s past family violence and impaired parenting capacity were vindicated. The Family Consultant was undoubtedly correct to conclude the interveners minimised the respondent’s responsibility for the failure to afford the children proper care and supervision in the past.[91] The paternal grandfather said he did not believe the respondent had ever been violent. He went so far as to say “my son would not raise his hand upon his wife”, but it is an incontrovertible fact that he did. He assaulted the mother in October 2012, which assault included him throwing an object at her and placing his hands around the mother’s throat. The interveners’ blind faith in the respondent is misplaced.

    [90] First Family Report, para 131

    [91] Second Family Report, para 94

1. The interveners both told the Family Consultant,[92] and the paternal grandfather repeated in cross-examination, that the respondent was a competent parent who did not require any supervision with the children. The respondent corroborated that evidence in cross-examination. He confirmed his belief he did not require supervision with the children and he believed that was also the interveners’ view. He said he considered his past problems had “disappeared”.

   [92] Second Family Report, para 30

2. Somewhat surprisingly, despite his formal proposal for the twins to live with the interveners, the respondent revealed in cross-examination his ambition to assume the residential care of at least the twins in the future. He vacillated about when he expected that might occur, but at least at one point he asserted that it could and should occur within this calendar year. He said he had already informed the interveners of his plans about him living independently with the children in the Newcastle area, the schools the children would attend, and his intention to ensure the children maintain their contact with the mother and applicant.

3. Perhaps even more surprisingly, the interveners confirmed such discussion had indeed occurred between them. The paternal grandfather even said he thought it was “really best for the children to live with [the respondent] if he has the means”. He said he considered the twins could instead live with the respondent from later this year if the respondent can obtain adequate independent accommodation, and further, he believed the paternal grandmother was of the same view. At one point, the paternal grandmother said that the respondent’s work commitments were the only reason why the time spent by the children with him should be limited.

4. It is very difficult, if not impossible, to reconcile that evidence with either the paternal grandmother’s admission that the respondent struggles to properly care for the children,[93] or the Family Consultant’s unchallenged opinion about the respondent’s impaired parenting capacity.[94]

   [93] Paternal grandmother’s affidavit, para 9

   [94] First Family Report, para 173; Second Family Report, para 90

5. The interveners did both maintain that any future change in the twins’ residence, from them to the respondent, would need to be sanctioned by the Court, but they each added the caveat almost as an afterthought.

6. The interveners both professed they would comply with any orders requiring their supervision of the children with the respondent, but their genuine disbelief in the need for any supervision permits an inference their compliance may not be sustained – just as the maternal grandmother’s supervision of the mother has not been sustained.

7. There are reasonable grounds for the mother’s fear that any order requiring the twins to live with the interveners would ultimately result in their abdication of residential responsibility to the respondent.[95] However, on balance, the evidence does not justify a conclusion that the paternal grandparents will defy orders placing the children in their residential care. Most probably they will indefinitely comply with the Court’s orders, even if the orders do not correlate with their private views about a just outcome. If that conclusion is erroneous and they eventually permit the twins to live with the respondent there is every chance fresh proceedings will be instigated by the mother, in which proceedings the interveners’ dereliction would obviously be an important feature.

   [95] Mother’s affidavit, para 6

8. As previously mentioned, an apprehended violence order is in place protecting the mother and children from the respondent. The order was made in October 2012 for a period of two years and will not expire until October 2014.[96]

   [96] First Family Report, para 5; Exhibit M1

9. The apprehended violence order only precludes the respondent from assaulting, molesting, harassing, threatening, intimidating, or stalking the children. He is permitted to approach them, provided he has not consumed intoxicating liquor or illicit drugs within the preceding 12 hours. The parenting orders set out at the commencement of these reasons, which permit interaction between the children and the father, are consistent with the terms of the apprehended violence order.

10. Finally, there was a dispute about the surname of the eldest child, which eventually resolved. The child has always used the surname “Allen”, which is the mother’s maiden name, and to which surname she reverted following her separation from the respondent. The applicant acknowledged the child responds to that surname and it is the surname by which he is known at pre-school. Nonetheless, the applicant initially proposed that his surname be changed to “Ibbott” to correlate with his own surname. Despite the mother’s former adamant opposition to any name change,[97] in cross-examination she was prepared to compromise and agree to the child being known by the hyphenated surname “Allen-Ibbott”, provided the name “Allen” preceded the name “Ibbott”. The applicant agreed to that proposal and the Family Consultant did not demur. Such an order is therefore made consensually.

    [97] Second Family Report, para 53; Mother’s affidavit, para 32

11. The views of the children in respect of their parenting arrangements were not sought because they are too young.

12. No other aspects of the evidence were addressed as relevant to the children’s best interests.

Conclusions and orders

1. In respect of the eldest child, it was accepted the presumption of equal shared parental responsibility applied (s 61DA). However, a dispute evolved about whether the evidence justified rebuttal of the presumption (s 61DA(4)).

2. At least initially, it was generally acknowledged that the applicant and mother could successfully exercise equal shared parental responsibility for the eldest child,[98] but that position changed over time. The applicant and Family Consultant instead proposed that the applicant have sole parental responsibility for the eldest child,[99] with which the Independent Children’s Lawyer finally agreed, but the reason for the change of view deserves evaluation.

   [98] First Family Report, paras 39, 176; Second Family Report, para 77

   [99] Second Family Report, paras 77, 100-101

3. The mother has always contended she and the applicant have the capacity to communicate and co-operate with regard to the eldest child.[100] The applicant held the same opinion, despite some reservations about the mother’s capacity to make decisions in the eldest child’s best interests.[101] Nonetheless, the applicant’s counsel conceded during final submissions that the applicant and mother had a “pretty reasonable co-parenting relationship”. During cross-examination the Family Consultant agreed the applicant and mother had a satisfactory communicative relationship, but she concluded the applicant’s views about the child’s best interests should trump the mother’s in the event of disagreement.

   [100] First Family Report, para 66; Second Family Report, para 47

   [101] Second Family Report, para 77

4. There was convincing evidence of only one disagreement between the applicant and respondent over the eldest child’s best interests and that related to a decision about whether he should commence school in 2014 or 2015.[102] Contrary to the submission of the applicant, the mother should not be reasonably criticised for initially agreeing to delay commencement of the child’s schooling until 2015 but then re-considering the merit of her decision by allowing the child to participate in school orientation with peers and seeking supplementary advice from a teacher. The mother was satisfied when the teacher’s opinion that the child was not ready for school in 2014 corroborated the view of the Family Consultant and she then abided by her original agreement with the applicant that the child’s commencement of school be delayed until 2015.

   [102] Second Family Report, para 100

5. Even if mild criticism of the mother was justified over that event, the evidence still falls considerably short of that necessary for rebuttal of the presumption of equal shared parental responsibility (s 61DA(4)). I reject the validity of the submission calling for the allocation to the applicant of sole parental responsibility for the eldest child.

6. Given the allocation of equal shared parental responsibility for the eldest child to his parents, the Act requires the Court to consider the residential options of the child living with his parents for “equal time”, or alternatively, living predominantly with one and spending “substantial and significant time” with the other (s 65DAA).

7. It is not in the eldest child’s best interests to either live with the mother for equal time or to spend substantial and significant time with her. For reasons already explained, the mother’s parenting capacity is impaired and the eldest child remains at risk of harm in her unsupervised care.

8. The eldest child should live with the applicant, just as the applicant, respondent, interveners, Independent Children’s Lawyer, and Family Consultant all proposed or recommended.

9. The eldest child should spend time with the mother frequently so as to preserve his meaningful relationship with her, but the child’s interests require his interaction with the mother to be supervised to ensure his safety.

10. That supervision can be capably provided by the maternal grandmother. I accept she will faithfully afford such supervision when the obligation is not as onerous as it has been under the interim orders. Rather than living with the mother permanently, as the interim orders require, the mother and maternal grandmother will be able to maintain separate households and it will only be necessary for the maternal grandmother to supervise the mother for a confined period of hours each weekend.

11. The supervision may be alternately provided by the maternal step grandfather, who seemed perfectly reliable and in whom the parties all apparently have unconditional faith. He has participated in the exchange of the children between the parties in the past and is well known to the children.

12. The orders provide for the eldest child to spend supervised time with the mother for four hours each Saturday. That order conforms to the Family Consultant’s recommendation and the uniform proposal of the applicant and Independent Children’s Lawyer. Provision is also made for visits on Mother’s Day and Christmas Day, just as the interveners proposed for the twins’ visits to the mother.

13. It is best for the visits to occur on weekends because it is convenient to the parties, the eldest child presently attends pre-school most weekdays,[103] and he will attend school from early next year.

    [103] Applicant’s first affidavit, para 132

14. The procedure for exchange of the eldest child between the applicant and mother was not raised in either the evidence or submissions, but was the subject of different proposals. Self-evidently, it is difficult to make a reasoned decision about a dispute in such circumstances. The applicant and mother live in reasonable proximity. The mother cannot drive, but her alternative supervisors (the maternal grandmother and maternal step grandfather) both can. The driving can be shared equitably by the parties. The applicant should deliver the eldest child to the maternal grandmother’s home and the mother shall ensure the eldest child’s return to the applicant.

15. The orders make no express provision for the eldest child to spend time with the respondent. Rather, provision is made for the eldest child to spend time with the interveners and the twins, conformably with the Family Consultant’s recommendation[104] and the uniform proposal of the applicant and interveners, who all considered that one day per month was an appropriate level of frequency and duration. There was no opposition, and no obvious impediment, to the respondent being present at those visits if he so desires.

    [104] Second Family Report, para 95

16. In respect of the twins, the presumption that their parents should have equal shared parental responsibility for them does not apply due to the respondent’s proven commission of family violence against the mother (s 61DA(2)).

17. The allocation of parental responsibility for the twins is therefore necessarily bound to the decision about their residence. The party or parties who provide the twins with primary residential care should at least share in their parental responsibility. It would be absurd for them not to.

18. The only parties seeking residential care of the twins are the mother and the interveners. As between them, the interveners are a better alternative. They have superior capacity to supervise the twins and attend to their emotional and intellectual needs. Importantly, the twins are attached to the interveners, even if the attachment relationship is not as strong as that between the twins and the mother.

19. As was the case in respect of the eldest child, the twins’ residential placement with the interveners was the outcome consistently proposed or recommended by the applicant, respondent, interveners, Independent Children’s Lawyer, and Family Consultant.

20. Since the twins must live with the interveners, they must logically share in the exercise of parental responsibility for them. The next inquiry is whether either the respondent or mother should also share such parental responsibility, to which a negative answer is warranted.

21. In respect of the respondent, he did not seek any share of parental responsibility for the twins.[105] It would be folly to foist it upon him.

    [105] Second Family Report, para 66

22. In respect of the mother, she sought that the twins live with her and that she have sole parental responsibility for them, even though she knew the residence and allocation of parental responsibility for the twins was forcefully contested by the interveners. It must follow that she did not believe she could successfully share parental responsibility for the twins with the interveners, irrespective of where they were ultimately ordered to live. To that extent at least, her views coincided with the interveners. They did not believe they could share parental responsibility for the twins with the mother.

23. The maternal grandmother independently deposed to the animosity which has contaminated the relationship between the maternal and paternal families of the twins.[106] The paternal grandfather endorsed those views during his cross-examination. He even declined to use a communication book that the parties decided to trial. The paternal grandmother said she had a communicative relationship with the mother, but she still joined with the paternal grandfather in proposing they have exclusive parental responsibility for the twins.

    [106] Maternal grandmother’s affidavit, para 5

24. In the face of such apparently entrenched views, any orders which sought to allocate shared parental responsibility for the twins to the interveners and mother would almost surely fail. There is no feasible option but to allocate parental responsibility to only the interveners, thereby excluding both parents of the twins from decisions affecting their lives. That was the Family Consultant’s recommendation.[107]

    [107] Second Family Report, para 105

25. In response to direct inquiry, the interveners confirmed with the Court they wished to have “equal shared parental responsibility” for the twins, and not merely “parental responsibility”, conferred upon them. The conferral of parental responsibility in that form invokes statutory obligations about the manner of its proper exercise (s 65DAC).

26. The allocation to the interveners of equal shared parental responsibility does not, however, necessitate consideration of certain forms of residential orders for the twins (s 65DAA). That is because the allocation of equal shared parental responsibility to the interveners is not an allocation of such parental responsibility to the twins’ “parents”. The Court’s discretion about the twins’ living arrangements is therefore unconfined.

27. It is desirable for the twins, because of their stage of development, to spend time with the mother as frequently as weekly. That was the recommendation of the Family Consultant,[108] which was uniformly adopted by the parties.

    [108] Second Family Report, para 104

28. The time spent by the twins with the mother should coincide with the time spent by the eldest child with her, just as the Family Consultant recommended. That will promote the sibling bonds between the children. The four hours each week spent by the eldest child with the mother is just as suitable for the twins.

29. The twins’ visits with the mother should also be supervised. The need for supervision is even more compelling if the mother is to care for all three children simultaneously.

30. As was the case in respect of the eldest child, the procedure for exchange of the twins between the interveners and mother was not raised in either the evidence or submissions, but was the subject of different proposals. The interveners and mother also live in reasonable proximity. Similarly, the driving can be shared equitably by the parties. The interveners should deliver the twins to the maternal grandmother’s home and the mother shall ensure the twins’ return to the interveners. Off-setting the delivery and return times by 30 minutes will enable the mother to settle the children sequentially upon their delivery to her and permit her to return them respectively to the applicant and interveners in a timely fashion.

31. The orders make no express provision for the twins to spend time with the respondent. That is because they live in the same household and are likely to continue doing so for the foreseeable future and so they will see one another regularly. In any event, the respondent expected he and the interveners would reach their own agreement if necessary. That expectation is also manifest from the interveners’ proposal.

32. Close supervision of the respondent with the children is unnecessary. So far as the evidence goes, he only drinks alcohol moderately and is not prone to intoxication,[109] his former use of illicit drugs has ceased,[110] and his former gambling problem is resolved.[111] His only enduring affliction is his propensity to bully and intimidate the mother, which is unlikely to occur in the future because of the injunction to be imposed against him and the improbability of their future association with one another.

    [109] Respondent’s affidavit, para 13

    [110] Respondent’s affidavit, para 28

    [111] Respondent’s affidavit, para 14

33. The respondent lives with the interveners and, although he harbours a desire to eventually live separately, the prospects of that occurring in the short to mid term seem remote. Nevertheless, there will be occasions on which, despite their common residence, the interveners will permit the respondent to care for the twins alone. Significantly, the paternal grandmother deposed to her observations that the respondent struggles with the responsibility of day-to-day care of the children because he lacks the requisite parenting skills and knowledge.[112] For that reason an injunction should be imposed precluding the interveners from allowing the children to be in the unsupervised care of the respondent for any longer than 12 consecutive hours. The duration of that period is necessarily arbitrary, but it effectively amounts to one full day or one full night.

    [112] Paternal grandmother’s affidavit, para 9

34. The orders, which remove all three children from the residential care of the mother, might be a crushing blow to her self-esteem. That is a repercussion best avoided if possible, but the law admits of no ambiguity. The best interests of the children are paramount and, to the extent that the mother’s interests clash with the children’s, her interests must yield to theirs. Hopefully the mother will find it a much more enjoyable and fulfilling experience to care for the children during only relatively short periods as her parenting capacity is then less likely to be tested to, or beyond, its limits.

35. Ultimately, the children will each attain an age and level of maturity when the supervision of the time they spend with the mother will probably be unnecessary, but that is likely to be many years hence. The state of the evidence does not permit the Court to speculatively incorporate into the orders a structured transition to unsupervised time so far into the future.

1. The orders also provide for telephone communication to occur between the children and the mother on a weekly basis. No order to that effect was proposed by the parties or the Independent Children’s Lawyer, but there was plenty of evidence about the desirability of frequent interaction between the siblings in particular. Weekly telephone conversations will help promote the sibling bonds. It will also promote the children’s relationships with the mother, as their interaction is otherwise confined to weekend visits of four hours duration.

2. The interveners proposed an injunction restraining the mother from taking the children to the home of the maternal aunt where one of the twins nearly drowned in January 2013.[113] The order is not made. There is no proper evidentiary basis for it, which the interveners’ counsel seemed to accept during final submissions. The occurrence of that unfortunate incident in January 2013 at that location does not increase the probability of a similar occurrence at the same place.

   [113] Exhibit INT6, Order 7

3. The interveners also proposed an injunction restraining the mother from administering medication to “the child” (which was presumably intended to be a reference to the twins) which is not specifically prescribed for “the child”.[114] That order is not made either. It was not expressly addressed during final submissions, but presumably the interveners thought it desirable because of the mistake made by the mother over the administration of medication to one or more of the children for “school sores” in 2013. While their apprehension is understandable, the proposed order is a disproportionate remedy. The supervision of the mother with the children by the maternal grandmother or maternal step grandfather is sufficient.

   [114] Exhibit INT6, Order 10

4. The remaining orders were either consensual or could not be the subject of reasonable resistance.

5. The Independent Children’s Lawyer sought costs against the parties who were not the recipients of grants of legal aid. The issue of costs is reserved for 28 days.

I certify that the preceding one hundred and sixty five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 February 2014.

Associate: 

Date:  18 February 2014