Kearney & Oakley & Ors

[2015] FamCA 30

FAMILY COURT OF AUSTRALIA

KEARNEY & OAKLEY AND ORS [2015] FamCA 30

FAMILY LAW – CHILDREN – Final – Best Interests – Where the children lived with the mother following separation – where the Court ordered that the children live with the father – where the children live with the paternal grandparents despite the order that they live with the father – where there is high conflict between the paternal family and the maternal family – where the children are at an unacceptable risk in the care of the paternal family – Order that the children live with the mother.

Family Law Act 1975 (Cth)

APPLICANT: Mr Kearney

FIRST RESPONDENT: Ms Oakley

SECOND RESPONDENT: Ms Kearney

THIRD RESPONDENT: Mr Mason

FOURTH RESPONDENT: Ms Mason

INDEPENDENT CHILDREN’S LAWYER: Leisa Toomey

FILE NUMBER: BRC 1243 of 2009

DATE DELIVERED: 30 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 19, 20, 21, 22 and 23 January 2015

REPRESENTATION

FOR THE APPLICANT: The Applicant in Person

COUNSEL FOR THE FIRST RESPONDENT: Mr Bunning of Counsel

SOLICITOR FOR THE FIRST RESPONDENT: Journey Family Lawyers

FOR THE SECOND RESPONDENT: The Second Respondent in Person

FOR THE THIRD RESPONDENT: The Third Respondent in Person

FOR THE FOURTH RESPONDENT: The Fourth Respondent in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Pendergast of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Leisa Toomey
Schultz Toomey O'Brien Lawyers

Orders - made on 28 January 2015

1. That all previous parenting Orders are discharged.

Parental Responsibility

1. That the mother have sole parental responsibility for the children K born … 2005 and M born … 2006, (“the children”).

2. That when the exercise of her sole parental responsibility requires the mother to make a decision about “major long-term issues” (as that term is defined in the Family Law Act)  in relation to the children:

   (a)She shall inform the father in writing of the decision to be made;

   (b)She shall invite written input from the father;

   (c)She shall take the father’s input into account when making the decision; and

   (d)She shall inform the father in writing of the decision she makes.

3. That notwithstanding the provisions of Order 2:

   (a)The mother shall be responsible for the daily care, welfare and development of the children when they are living with her;

   (b)The father shall be responsible for the daily care, welfare and development of the children when they are spending time with him.

Exchange of Information

1. That the mother and father shall:

   (a)Keep the other parent informed at all times of their respective residential addresses and landline contact telephone numbers if they have a landline, and mobile telephone contact numbers if they do not have a landline telephone, and of any changes to those within forty-eight (48) hours of any change occurring;

   (b)Inform the other parent as soon as reasonably practicable of any serious medical condition, significant health issue or illness suffered by the children or either of them; 

   (c)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat either or both of the children from time to time and authorise those practitioners to provide the other parent, if requested by that other parent, with information that they are lawfully able to provide about the children;

   (d)Advise the other parent in writing of their intention to travel with the children to any location outside of a radius of 250 kilometres from their usual residence, with such notice to be provided at least 48 hours prior to the intended travel and to provide details of the address where the children will be residing, contact telephone numbers and the date of intended departure and return.

2. That the mother authorise any school attended by the children to give the father information about the children’s educational progress and involvement in school activities and to supply him, at his expense if necessary, with copies of school reports, photographs, certificates and awards obtained by the children.

3. During the time the children are in the care of either parent, that parent shall:

   (a)Respect the other parent’s privacy and not question the children about the personal life of the other parent;

   (b)Speak of the other parent respectfully and refer to the other parent as “mum”, “dad”, “mummy”, or “daddy” as the case may be;

   (c)Not denigrate or insult the other parent or any member of the other parent’s family to or in the presence or hearing of the children;

   (d)Use his and her best endeavours to ensure that others do not denigrate or insult the other parent or any member of the other parent’s family to or in the presence or hearing of the children.

Live With

1. That the children, K born … 2005 and M born … 2006, shall live with the mother and for this purpose they shall be delivered forthwith into her care.

Spend time with the Father

1. That the children shall spend time with the father as follows:

   (a)Subject to each of the mother and the father having completed all necessary intake procedures, the children shall, from the first weekend in March 2015, spend from two hours to four hours (however much of that time can be accommodated by the Centre) with the father supervised at or by a staff member of B Contact Centre, Town A on the Saturday or Sunday of each second weekend with the mother and the father to share equally the costs charged by the Centre for the service;

   (b)The father shall be at liberty to take his partner and her child (if that can be accommodated by the Centre) with him when spending time with the children under the supervision of B Contact Centre, but no other person;

   (c)That conditional upon the father completing a post orders or post separation Parenting Program and an Anger Management Program, both approved by the Independent Children’s Lawyer, and providing the Independent Children’s Lawyer with written evidence of his completion of those two programs, the children’s time with the father shall transition from being supervised by B Contact Centre to unsupervised time as follows:

   (i)Each second weekend during school term from after school on Friday until 5:00 pm on Sunday with the father or his partner (but no other person) to collect the children from their school at the end of the school day on the Friday and the father or his partner (but no other person) to return the children to the mother at B Contact Centre, Town A on the Sunday afternoon at the end of those weekends with the mother and the father to share equally the costs charged by the Centre for the service;

   (ii)Conditional upon six alternate weekends of the children spending time with the father pursuant to Order 9(c)(i) hereof having already occurred before the first such holiday visit takes place, the children shall spend half of each of their school holiday periods in the father’s care with it being the second half of each holiday period that commences in an odd numbered year and the first half of each holiday period that commences in an even numbered year, with the children to transition between their parents’ care at B Contact Centre at the start and commencement of such holiday time with the father, with the mother and the father to share equally the costs charged by the Centre for the service;

   (iii)For the purposes of calculating half of each holiday period, the holidays shall be deemed to commence at midnight at the end of the last day of school before they start and deemed to end at midnight at the start of the first day of school after they end; 

   (iv)When the children spend the first half of the holidays with the father they shall be delivered to him at 10:00 am on the first Saturday of the holidays and returned to the mother at 5:00 pm on the day that is calculated to be the last day of his half of the holidays whether his half of the holidays would end at midday that day or midnight later that night;

   (v)When the children spend the second half of the holidays with the father they shall be delivered to him at 10:00 am on the first day of his half of the holidays whether his half of the holidays would begin at midday that day or midnight earlier that night and they shall be returned to the mother at 5:00 pm on the last Saturday of the holidays;

   (vi)Provided the children are already spending alternate weekends with the father pursuant to Order 9(c)(i) hereof by Father’s Day 2015, they shall also spend the weekend that Father’s Day falls on with the father as per the same arrangements as provided for in this Order for alternate weekend time with him, whether Father’s Day weekend is one of the scheduled alternate weekends or not and, if it was not, then it shall be an extra weekend with the father;

   (vii)That should the children be spending alternate weekends with the father pursuant to Order 9(c)(i) hereof and Mother’s Day falls on a weekend that the children would otherwise spend with the father pursuant to this Order, they shall stay at home with their mother on that weekend instead and the father does not get a make-up weekend in lieu.

Communicating with each parent when in the other parent’s care 

1. That whenever the children are in the mother’s care, the father shall be entitled to speak with them by telephone at any time between 5:30 pm and 6:00 pm on Tuesdays, Thursdays and Saturdays, as well as on each of the girls’ birthdays and his own birthday, as well as between 9:00 am and 9:30 am on Easter Sunday and Christmas Day, with the father making the call and the mother ensuring that the children take the call and are given privacy to speak with their father.

2. That whenever the children are in the father’s care, the mother shall be entitled to speak with them by telephone at any time between 5:30 pm and 6:00 pm on Tuesdays, Thursdays and Saturdays, as well as on each of the girls’ birthdays and her own birthday, as well as between 9:00 am and 9:30 am on Easter Sunday and Christmas Day, with the mother making the call and the father ensuring that the children take the call and are given privacy to speak with their mother.

3. That each parent shall also be at liberty to send letters, cards or presents to the children at the other parent’s address.

4. That the parents shall utilise a “communication book” which will travel with the children between households to communicate with each other about parenting issues and each parent shall write respectfully to the other parent when completing entries in the book and each party shall be at liberty to photocopy any entry in the book to retain as he or she considers necessary.

Time and communication with maternal grandparents

1. That the children shall spend time with and communicate with their  maternal grandparents as agreed between the mother and the maternal grandparents.

Time and communication with paternal grandparents

1. That subject to each of the paternal grandmother and paternal step-grandfather having completed all necessary intake procedures, the children shall, from April 2015, spend from two hours to four hours (however much of that time can be accommodated by the Centre) with the paternal grandmother and the paternal step-grandfather together or the paternal grandmother by herself, supervised at or by a staff member of B Contact Centre, Town A on the Saturday or Sunday of one weekend per month, not being on the same day as the children spend time with the father pursuant to this Order, with the paternal grandparents to pay the costs charged by the Centre for the service.

2. That when the children’s time with their father has transitioned to unsupervised time in accordance with the terms of this Order, and conditional upon their completing a post orders or post separation Parenting Program approved by the Independent Children’s Lawyer, and providing the Independent Children’s Lawyer with written evidence of the completion of that program, the children shall, during the time that they are in their father’s care, spend such time with their paternal grandparents, or either of them, as the father shall determine provided the father is present with the children at all times that they are in the presence of their paternal grandparents or either of them.

3. That save as otherwise provided for in this Order, the paternal grandmother and the paternal step-grandfather are restrained and an injunction is hereby issued restraining each of them from approaching, harassing or intimidating the mother or the mother’s partner or from going within 200 metres of the mother’s residence or place of employment or from approaching the children or either of them or going to the children’s school.

The Independent Children’s Lawyer

1. The terms of this parenting order shall be explained to the children by the Independent Children’s Lawyer and Mr C at their discretion.

2. The Independent Children’s Lawyer shall be discharged as at the 1^st day of September 2015 or upon her satisfaction that the father has completed the post orders/post separation parenting program and anger management program, and that the paternal grandparents have completed the post orders/post separation parenting program, if that satisfaction comes before the 1^st day of September 2015.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kearney & Oakley 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 BRISBANE

FILE NUMBER: BRC 1243 of 2009

Mr Kearney

Applicant

And

Ms Oakley

First Respondent

And

Ms Kearney

Second Respondent

And

Mr Mason

Third Respondent

And

Ms Mason

Fourth Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. On Wednesday, 28 January 2015, I made final parenting Orders in respect of two sisters, K who will be ten years old soon, and M who is eight and a half years old.  I ordered that they immediately move back to live with their mother after having lived with their paternal grandparents for nearly three years.

2. My parenting Order provided for the children to have a break from spending time with their father and their paternal grandparents for a little while before they recommence spending time with them, initially by way of supervised visits at a children’s contact centre.  That time is to transition to unsupervised time after the father has completed an anger management course and a parenting orders program, and, in respect of the paternal grandparents, after they have completed a parenting orders program. 

3. In short, the children’s exposure to high levels of conflict between their maternal and paternal families over several years and the unacceptable risk of them suffering serious emotional harm if they continued to live with their paternal grandparents, explain the Orders I made.  These are my considered reasons.

Some Background Facts

1. The father was born in 1985.  He is now almost 30 years of age.  The mother was born in 1988, she is 26 years of age.  Both of them had very troubled lives in their teenage years.  They met and commenced a relationship in 2003 when the mother was only 14 years of age.  The father was around 18 years of age at the time.  The mother was living on the Sunshine Coast with her mother and sisters.  Her mother was going through a very difficult separation from the mother’s father at that time.  The father, then just a young man, was living on the streets having had an acrimonious falling out with his own mother and stepfather sometime beforehand.

2. The mother tried to persuade her mother to take the father in to live with her in their home, but her mother refused.  Consequently, the mother moved out to go and live with the father.  She fell pregnant to him at the age of 14 and had that pregnancy terminated.  She fell pregnant to him again at the age of 15 and their first child K was born in 2005.  Their second child M was born in 2006.

3. The father had a serious problem with drug and alcohol addiction and abuse which, unsurprisingly, brought him into frequent contact with the criminal justice system during his teenage years.  The relationship between the mother and the father was volatile and the father perpetrated serious domestic violence against the mother, including on one occasion breaking her jaw with a physical assault that resulted in her hospitalisation.

4. The Queensland Department of Child Safety (as it was then called) intervened and the two little girls were taken into State care and placed in a foster family.  The mother conscientiously worked with the Department towards the goal of reunification with the two girls.  As part of that, she separated from the father on a final basis during this time. 

5. After the separation of the mother and the father, whilst the mother was working with the Department to effect a reunification with her daughters, her relationship with the father and the paternal grandparents went into serious decline.  According to the mother, the paternal grandmother blamed her for the fact that the two little girls were taken into State care in the first place, seemingly absolving her own son from any responsibility for that outcome.  According to Departmental records the paternal grandmother’s application to be accepted as a kinship carer for the two little girls in lieu of the foster arrangement put in place by the Department was rejected because of the Department’s assessment that the paternal grandmother would actively work against reunification of the mother and the two children. That was extremely prescient of the Departmental officers.

6. Whilst the mother was having supervised time with the two little girls, leading to reunification with them, the paternal grandparents were also having some time with the children of their own with the approval of the Department.  The children spent almost a year in the foster care of Ms D and her partner. 

7. In or around 2008, with the Department’s approval, the two little girls were reunited with their mother. 

8. Conflict between the mother and the father and his mother and stepfather increased with the return of the children to their mother’s care.  They could not reach agreement as to the terms upon which the father and his parents could have the children spend time with them.  At that time, the paternal grandmother was clearly more interested in seeing the little girls than the father demonstrated he was. He was still apparently caught up in his lifestyle of drug and alcohol abuse at the time.

9. At the beginning of 2009, the paternal grandmother commenced proceedings in the Federal Magistrates Court (as it was then known) for parenting orders that provided for the two children to spend time with and communicate with her every second weekend and half of the school holidays. She joined both the mother and the father as respondents to her application.  The paternal grandmother apparently had difficulty locating the mother to serve her with the application and supporting affidavit evidence.  Location and Information orders were obtained from the Court and eventually, around the middle of the year, the mother was located.  She and her new partner, Mr E, had left the Sunshine Coast to relocate to Melbourne. 

10. An Independent Children's Lawyer was appointed; a family report writer was retained; a Family Report was prepared; and when the matter came on for trial before a Federal Magistrate in late January 2010, orders were made by consent as between the applicant paternal grandmother, the mother, the father and the Independent Children's Lawyer.  All parties were represented on that day by experienced family law barristers.  The consent orders provided for the children to continue living with the mother and for the mother and the father to have equal shared parental responsibility in respect of the two girls.  Interestingly, the orders provided for the children to spend time with the paternal grandmother and the father as agreed, but failing agreement, for one half of the Victorian gazetted school holiday periods.  The children were to be flown between Melbourne and the Sunshine Coast with the costs to be shared between the parties; handovers were to take place at airports either in Melbourne or Brisbane; and telephone communication between the paternal grandmother, and the father and the children on a regular, weekly basis between holiday visits was provided for.

1. Before too long, the parties were all in dispute again.  The father, supported by his mother, commenced fresh proceedings.  Apparently, the conflict that continued between the parties had resulted in the children not spending all of the holidays with the father and the paternal grandmother that they were required to spend with them pursuant to the January 2010 Order. 

2. Halfway through the September/October school holidays, the mother and her partner brought the two girls to Queensland by car for the dual purposes of attending upon the family report writer for interviews for the preparation of a family report and for delivering them to the paternal grandmother and the father for their holiday stay.  Again, in respect of the holiday arrangements there was conflict and disagreement.

3. On 3 October 2011, both families gathered at and around the report writer’s offices in Town F.  Despite the high conflict between the families, no arrangements were made to keep the families apart that day.  At the end of the day, a very disturbing incident occurred outside the report writer’s offices in the immediate presence of the children.  Whilst the report writer was speaking with the mother, without the mother’s prior knowledge or agreement, the paternal grandparents and the father placed the two girls in the back of their car with the intention of taking them for their allotted holiday time. The mother and the girls became very upset and a dramatic incident unfolded when the mother went to get the girls out of the back of that car only to be confronted by the paternal step-grandfather who sought to restrain her from doing that.  This prompted the mother’s partner to become involved, following which the police were called to attend.  In the end, the police at the scene persuaded the mother to let the children go with the paternal family with an agreement that the children would be returned to the mother at the end of the week.  Unfortunately, that never happened.

4. The mother’s partner was charged with assaulting the paternal step-grandfather on that day, but the charge was ultimately withdrawn by the police and never proceeded with.  The mother’s partner maintained, even at trial before me, that he had not assaulted the paternal step-grandfather that day.

5. The family report writer issued a report that was scathing of the mother and her partner and their attitude to the paternal grandparents and the father, and the children’s right to have a relationship with them.  However, there were two serious child protection concerns raised by the family report writer in that report.  One was an allegation that the children, or at least one of them, told the family report writer that the mother had threatened to kill herself and them; and the other was an allegation that the mother’s partner had abused the children with excessive discipline, including forcing the eldest child to put her underwear in her mouth to punish her for wetting her pants accidentally.

6. The matter was before the Federal Magistrates Court on 16 October 2011 and orders were made allowing the children to stay in the care of the father, who at that time was living with the paternal grandparents, and for the mother to have no time with the children at all for some period.  The children have been living with the paternal grandparents ever since, notwithstanding the fact that the orders provided for the children to live with the father and for him to have sole parental responsibility for them and the fact that he has not been living with his mother and stepfather for most of that time. 

7. The Independent Children's Lawyer then engaged a new family report writer to prepare a report to assist her and the Court.  Mr C, a consultant social worker in private practice with many years of experience in child protection work in various jurisdictions, was retained. 

8. He prepared a report that was attached to an affidavit and filed on 20 February 2012.  In the report he concluded that the two concerns of a child protection nature that I have referred to as underpinning the earlier report writer’s opinion and the outcome in the court proceedings in October 2011, were not substantiated.  He also expressed the opinion that the children were suffering considerable emotional harm of a serious nature in the paternal family’s household with the maternal family being denigrated and the children being “primed” to say certain things during the report process.  At that time, he opined that the children demonstrated very strong emotional bonds with the mother and that she demonstrated significantly more awareness of and responsiveness to the children’s needs and personal issues than did the father.  However, he made no specific recommendation in respect of which party the children should live with. 

9. Over the first few months of 2012, the Federal Magistrates Court (as it then was) made orders providing for the mother’s time with the children to be reinstated, initially with supervision but thereafter, without.  The matter was set for a trial to take place from 21 to 23 May 2012.  A week before that trial was to commence, the father filed an affidavit in which he deposed to disclosures having been made by the eldest child that the mother’s partner had made her touch his penis and that this had happened when they were living in Victoria.  The father’s evidence was that the child had made these disclosures “over the last month”.  He also gave evidence that he had been interviewed by an officer of the Department of Child Safety and that the child had been interviewed by a police officer at the Town G Police Station in which interview the child disclosed what had occurred. 

10. On 21 May 2012, a further interim order was made, with the consent of all the parties, by Federal Magistrate Turner (as her Honour then was) providing for the children to continue living with the father, that he have sole parental responsibility for them, that they spend specific time with the maternal grandparents as well as holiday time with the mother, with the mother being ordered to ensure that the children not be left in the unsupervised care of her partner and for the father or the paternal grandmother to facilitate telephone contact between the children and the mother each Tuesday and Thursday. The matter was also transferred to this Court with a request that it be considered for inclusion in the Magellan List.

11. It was placed on the Magellan List and then managed by a Registrar towards having it listed for a trial in this Court. 

12. The Independent Children's Lawyer engaged Mr C to prepare a further report and that was provided in March 2014 and attached to an affidavit that was filed on 23 April 2014.  In his conclusions and recommendations in that report, Mr C specifically repeated his previous opinion that much of the information that was placed before the Federal Magistrates Court in the family report of 8 October 2011 by the previous family report writer was based on misunderstandings and was incorrect in many vital respects.  He expressed the opinion that the arrangement whereby the children went to live with the paternal family had not proved to be in their interests.  He expressed the further opinion that the children had both appeared to maintain a strong bond with their mother despite relatively infrequent contact in the two years that had expired and that the youngest child remained particularly well attached to the mother.  He mentioned that the maternal family were most cooperative and communicative during the preparation of the report but that the paternal family were the opposite, being very uncooperative and uncommunicative during the preparation of the report.  He also mentioned the fact that the father was serving a period of imprisonment at the time of his report and was likely to remain in prison for about six months.  He pointed out that the mother and her partner were returning to live on the Sunshine Coast and expressly recommended that the children live with the mother, obtain counselling and only have independently supervised time with the paternal family.

13. It seems that the hearing of the proceedings was then delayed due to the father’s imprisonment.  Ultimately, it was listed for trial before me for five days from 19 to 23 January 2015.  At that trial, the mother was represented by solicitor and counsel, the Independent Children's Lawyer was represented by counsel and the father and his mother, the paternal grandmother, both appeared in person without legal representation. The maternal grandparents also appeared without legal representation.

14. A third and final report prepared by Mr C dated 14 January 2015, just a few days before the start of the trial, was put into evidence.  It was attached to an affidavit filed 15 January 2015.  His conclusions and recommendations remained relatively unchanged from those that he had made at the end of his previous report.  If anything, his opinion that the children should be placed in the care of their mother on a day to day basis was expressed even more firmly.  In his conclusions, he expressed the opinion that the children had been seriously emotionally harmed in the care of their paternal grandmother and her partner and that they would continue to be at an unacceptable risk of such harm as long as they lived there with them.  He expressed the strongly held view that there was no credible evidence that the mother is anything other than a caring and capable mother or that her partner poses a child protection risk in respect of the children.  He expressed the view that the children’s maternal extended family is an integrated and positive source of support, love and care for them whereas the paternal family offer little in this regard, save for the fact that the father has established a new and apparently worthwhile relationship with a young woman who is herself the mother of a young girl.  He was satisfied that if the children went to live with their mother that she would arrange appropriate professional and impartial counselling for them and he recommended that the Court favourably consider a change in the children’s residence so that they could live with their mother.  He also recommended that the order restricting the children’s contact with the mother’s partner be lifted; that the children be able to spend some time with their father; but that the time with the paternal grandmother be restricted to supervised time for two hours per month.

15. At the end of the trial, the Independent Children's Lawyer made the principal submission that Mr C’s recommendation should be followed and that the two little girls should go to live with their mother.  The submission was that I would be satisfied that Mr C, the family report writer, had correctly assessed the family situation. The submission also included a submission that I would be satisfied that the mother’s partner did not present an unacceptable risk to the children’s wellbeing. I accepted those submissions without reservation.

16. For the mother, Mr Bunning of Counsel submitted that the children should live with the mother and only spend supervised time with their father and their paternal grandparents. Indeed he made the submission that I should make an order immediately for the children to live with the mother whilst my judgment was reserved. I refused that application but indicated to the parties that it would be likely that I could deliver judgment very quickly in this matter. That is how things have transpired. Conscious of my determination that Mr C was indeed correct and that the children should be moved immediately to live with their mother, as well as being conscious of the fact that the new school year starts this week, I determined to make my orders as soon as possible and publish these reasons as soon as I possibly could thereafter.

17. Interestingly, at the start of the trial, the father informed the Court that he was seeking orders that provided for the children to live with him, rather than his mother with whom they have actually been living for the last three years.  However, he specifically acknowledged that he wanted an order that did not commence immediately but was unable to say at what date, or triggered by what event, in the future a transition from living with his mother to living with him should take place. The paternal grandmother told the Court that she wanted to see that outcome eventually come about but that she wanted an order that the children live with her, leaving it to her to decide as to when the children would transition to live with their father. At the end of the trial, some five days later, apparently conscious of how the trial had proceeded, both the father and the paternal grandmother submitted to the court that an order be made that the children live with the father immediately. I could not make such an order.

The principles by which these parenting cases are decided

1. Pursuant to the provisions of the Family Law Act 1975 (Cth) (“FLA”) this Court is to make such parenting orders as the Court considers “proper”, and in doing so, the Court must regard the best interests of the subject children as the paramount consideration.

2. In determining what is in a particular child’s best interests, the Court must consider an extensive list of matters.[1]  Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm. Just how broad the Court’s enquiry may be, however, is evidenced by the inclusion in the list of the consideration of “any other fact or circumstance that the court thinks relevant”. Of course the actual weight to be attached to the various components of all the applicable statutory provisions will vary from case to case having regard to the evidence and the Court’s factual findings.

   [1] Set out in s 60CC of the FLA

3. Of course, parenting orders proceedings are not restricted to the parents of children. Other adults with a relevant interest in respect of the children, such as grandparents, can apply for parenting orders including an order that children live with them rather than one or both of the parents. Such applications have to be considered on their merits and, like every other parenting orders case, with the best interests of the children being the paramount consideration and with those best interests being determined by consideration of the same extensive list of matters as set out in s 60CC.

4. The making of orders that the Court considers “proper” is also subject to the application of a statutory presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for those children.  That presumption does not apply, however, where there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2]  Even if there is no reasonable basis for determining that the presumption does not apply for that reason, the Court may still make a different order as to parental responsibility if it is persuaded, on the evidence, that the presumption should not apply. 

   [2]        See s 61DA(1) and s 61DA(2) of the FLA

5. At the end of the trial in this matter, no party asked for an order that parental responsibility be shared equally between the two parents.  No party submitted that the presumption should apply and every party said that a sole parental responsibility order should be made. 

6. For the Independent Children's Lawyer, it was submitted that a sole parental responsibility order should be made in favour of the mother.  For the mother, it too was submitted that she should have sole parental responsibility.  That submission was supported by the maternal grandparents, whilst the father sought sole parental responsibility for himself. The paternal grandmother’s position was somewhat unclear having regard to her changed position at the end of the trial from that which she advanced at the commencement of the trial, which included an order that she have sole parental responsibility for the children.  I can only presume that her change to the position that the children should live with the father and not her, at the end of the trial, would also involve her supporting his position in respect of parental responsibility. 

What of parental responsibility in this case?

1. This aspect of the case is very easily determined.  The father committed serious family violence against the mother during their relationship, including after the birth of the two girls.  Of that, there is no doubt.  His imprisonment for six months in 2014 was upon convictions for a number of offences committed against the mother during the time of their relationship, including several charges of assault including assault occasioning bodily harm, to which he pleaded guilty.

2. Accordingly, the presumption in favour of equal shared parental responsibility being in the children’s best interests is clearly rebutted in this case.  That no one argued for shared parental responsibility was just a symptom, in my view, of the high conflict existing between the two families. The father and the mother do not talk to each other and have not for many years.  No one could reasonably expect them to immediately be able to discuss and negotiate amicably in respect of decisions about major long-term issues in these children’s lives.  In such circumstances, it is clear that whichever parent or adult these children live with, that parent or adult should have sole parental responsibility conferred upon him or her.  As I have determined that the children should live with their mother, it follows that she will have sole parental responsibility.  She will however be required to communicate with the father when decisions about major long term issues are to be made to illicit and take into account his views before she can make those decisions herself pursuant to the sole parental responsibility order I have made.

Some more relevant matters

The father’s imprisonment

1. It seemed to be common ground at the trial that in the time since the children were ordered to live with the father, namely from 16 October 2011, that the father had spent three separate periods of time in prison.  I must say though that the evidence about the timing of the first two occasions was a bit confusing.

2. During the cross-examination of the father by counsel for the mother, the father agreed that he had spent some time in prison in the first few months of 2012.  It seemed also that he agreed that he had spent further time in prison in mid 2013 before the third and longest occasion in 2014. 

3. Notwithstanding the father’s oral evidence, I am not satisfied that he did spend time in prison in the first few months of 2012.  The father’s criminal history  was admitted into evidence after having been produced by the Queensland Police Service pursuant to subpoena. The father was charged with assaulting or obstructing a police officer on 5 April 2011.  He failed to appear in accordance with his bail undertaking in the Magistrates Court to answer that charge on 1 June 2011.  On 24 October 2011, he was convicted of assaulting or obstructing a police officer and failing to appear on the June 2011 occasion.  He was sentenced to four months imprisonment which was wholly suspended for 18 months.  During the period of that suspended sentence the father was charged with having driven a motorcar whilst over the middle alcohol limit and whilst disqualified from driving (there having been a previous disqualification for drink driving imposed upon him), both offences having occurred on 10 November 2012.  His record does not disclose a period of imprisonment in the first part of 2012. 

4. On 11 January 2013, the father pleaded guilty to the two offences of drink driving and disqualified driving and, accordingly, his previous suspended sentence imposed in October 2011 was invoked and he was sent to prison for four months with a parole release date being set at 22 February 2013.  He was released on parole on 22 February 2013 conditioned upon his abstinence from illicit substances from that date.  On 10 July 2013, the father tested positive to illicit substances and his parole was suspended on 8 August 2013.  I am satisfied that the father then served a short period of imprisonment for his breach of his parole conditions before again being released into the community. 

1. On 28 February 2014, in the District Court, the father pleaded guilty to eight charges arising from complaints that had been made to police by the mother in respect of circumstances pertaining to their relationship in the years when they were together. Those charges included maintaining an unlawful relationship with a child, carnal knowledge of a girl aged 12 to 16 years, three counts of common assault and three counts of assault occasioning bodily harm.  Two counts of rape for which the father had been charged were not proceeded with by the Queensland Director of Public Prosecutions. The father was sentenced to three years of imprisonment to be suspended after six months for the first two offences and six months of imprisonment followed by two years of probation for the assaults.  As I have mentioned, he began his term of imprisonment on 28 February 2014 and was released in late August or early September of that same year.

2. The father and paternal grandmother were very angry at the mother for pressing charges, including rape charges, against the father for things that happened during their relationship.  Indeed, it was part of their case against the mother that she had only pressed the charges in response to the paternal grandmother and the father’s applications for parenting orders in respect of the two children.  The mother denied this and asserted that it was something she had determined to do after receiving counselling in respect of being a victim of domestic violence at the hands of the father during their relationship and that it was part of her emotional healing process.  If that is correct, I do not consider it to be an unreasonable course. Whether it is correct or not, in my view it does not matter in this case.  As a young adult man carrying on a relationship with a young teenage girl, the father committed offences. He had to know he was doing so at the time. In addition, the violence he perpetrated against the mother was completely unacceptable.  That she later, as a young adult woman, sought to have him held accountable in the criminal justice system for his actions can hardly be regarded as unreasonable.  That he and his mother were very unhappy about it is, however, hardly surprising.  It is easy to comprehend the poor state of relations between the father and his family and the mother and her family in all the circumstances.  Unfortunately, two little girls who are loved by all the adult members of both families have been caught up in the middle of this conflict.  That has not been good for their emotional development. 

The history of the allegations of abuse of the two children

1. As already observed, the family report writer, Mr C, pointed out that key factors in the Federal Magistrate Court’s October 2011 determination to place the children with the father, were allegations that the mother’s partner had cruelly disciplined and abused the eldest child when they were living in Melbourne by rubbing her wet panties in her face and putting those wet panties in her mouth.  There were other issues, but that was a central one. It seems that the previous report writer, Ms H, accepted those allegations, particularly after the child apparently made disclosures about the matter to her during the 3 October 2011 interviews.

2. However, it emerged in evidence, principally through the work done by Mr C, that the very first disclosure by the child of an allegation that she had her wet knickers put in her mouth by an adult, was by way of a disclosure reported to have been made by that child to Ms D, the children’s former foster mother, during a holiday visit of the children to Queensland over the Christmas and summer school holidays in 2010/2011. 

3. Ms D gave evidence at the trial.  She was an impressive witness and I had absolutely no reason to doubt her honesty or the accuracy of her recollections.  Her evidence was that she was driving the two girls on the Sunshine Coast to or from a shopping centre when the eldest child remarked from the back seat of the car that her “Daddy [the father’s given name]” lived down a particular road and that he had little guns stored in the ceiling that he had shown the girls and that he had also put her wet knickers in her mouth when she had accidentally wet them one day.  Ms D was quite certain that the child had used the term “Daddy [the father’s given name]” and not another term such as “Dad” or “Daddy” or “Daddy [Mr E’s given name]”.

4. The mother gave evidence that after the children returned to her care at the end of those holidays that the child told her that her father, not Mr E, had put her wet knickers in her mouth. 

5. Documents produced under subpoena from the primary school that the child was attending in Melbourne at the time, reflect a note having been made by the child’s classroom teacher that on 22 March 2011 she notified an officer of the Victorian Department of Human Services that the eldest child had told her that when she wets her pants, her dad rubs them in her face and puts them in her mouth.  Certainly there was no suggestion that the Victorian Department took any action or intervened in the family in any way upon receiving that information, although it appears that the girl’s teacher thought that the child was talking about the mother’s partner, simply because she was living with him and her mother. 

6. Apparently concerned about the child’s disclosures, the mother became reluctant to comply with the existing court order to send the children to spend holiday time with their father and their paternal grandparents in Queensland.  Indeed, it appears that a complaint about the father’s alleged behaviour in respect of putting the wet pants in the child’s mouth, was made to the Queensland Police.  In oral evidence at the trial the father agreed that officers of the Queensland Police had interviewed him about the allegation in September 2011.  He said that was the first time he had heard of the allegation and that he simply told the Queensland Police that it had to have been the mother’s new partner who was responsible for the act as the children had been living with the mother and him in Victoria and had not been seeing the father for the previous few years. That assertion overlooked the fact that they had spent time with him during the 2010/2011 summer school holidays.  The father denied that he put the child’s wet pants in her mouth. 

7. According to the family report writer Mr C, the piece of information that the father had been interviewed by Queensland Police in the month just prior to the 3 October interview with the previous family report writer was not given to the previous family report writer.  Mr C expressed the opinion that any alleged disclosure by the child later made in which she asserted that it was the mother’s partner who was responsible for the action, was likely to be the result of priming or coaching by members of the paternal family. That was not an opinion he just expressed in an isolated fashion but after a great deal of interaction with both the maternal and paternal families and much consideration.

8. Neither the paternal grandmother nor the father put any affidavit evidence before the Court in which they deposed to the circumstances in which the child is said to have first disclosed the allegation about the wet pants to them.  That, in my view, adds weight to the probability that the child was primed or coached to allege that Mr E was responsible.

9. The mother and her partner both gave evidence, and in cross-examination by counsel for the Independent Children’s Lawyer, Mr E denied ever doing anything to the child akin to what was alleged.  The mother also denied ever having seen her partner do anything like that to the child, whilst acknowledging that she herself had been responsible for disciplining her children by sending them to a spot in the house and having them stand for a few moments with their hands in the air whilst contemplating their misbehaviour. This was another act the children had complained of, blaming Mr E for imposing the discipline and not their mother.

10. Both the mother and her partner impressed me with their demeanour in the witness box and the candour with which I believe they gave their evidence.  Whilst not withholding their disdain for the father and his mother and stepfather, they nevertheless displayed no signs of dishonesty to the best of my judgment.  Both the mother and Mr E were firm in their evidence that Mr E does not and has not disciplined the children over the years, leaving that job to the girls’ mother.  Both of the maternal grandparents also gave evidence that they have not seen Mr E discipline the girls.  Both said he seemed to have a more laid back style of dealing with the girls rather than disciplining them.

11. Ultimately, despite the fact that the child is acknowledged to have made disclosures in recent times to Mr C and a psychologist to whom the girls have been taken by the paternal grandmother in 2014, asserting that the mother’s partner was responsible for putting wet pants in the child’s mouth, I do not find that he did and I find that there is not an unacceptable risk of such a thing happening in the mother’s household even if the children are left in the unsupervised care of the mother’s partner as one might expect they could  sometimes be in future.

12. A more serious allegation that the mother’s partner sexually abused the eldest child by having her touch and masturbate his penis at some time when they were living in Melbourne was also made in this case by the paternal family.

13. The emergence of the allegation is best viewed in context.

14. Six Magellan reports prepared by the Queensland Department of Communities, Child Safety and Disability Services, were submitted to this Court, from July 2012 through to 2014.  The first of those reports records the Department having received a notification through its Sunshine Coast offices on 12 April 2010 about the children. Although of course the notifier is not identified, it seems from its content to have been a person in or close to the paternal family.  The Department was told that the children had disclosed that the mother’s partner smacks them and pulls their ears and tongue and that the eldest child tells the paternal grandmother when she is with her that she does not want to go back to the mother and that she feels safe in the paternal grandmother’s care.  Information given by the notifier included assertions that the youngest of the two girls “is often seen tightly holding her genital area and she doesn’t need to go to the toilet at this time”.  The paternal grandmother was said to hold the view that such behaviour was not normal for a child and can only be explained by “something … going on at home”. Clearly, the paternal grandmother was asserting then, in 2010, that “something” inappropriate was going on in the mother’s home. 

15. The children, as already mentioned, went into the care of the father and his parents on 3 October 2011 and on 18 November 2011 the father was charged with all of the charges that he pleaded guilty to in February 2014, as well as the charges of rape that were later withdrawn. I accept though, that the mother first made the complaints to police in 2009.

16. The charges against the father on the mother’s complaint were mentioned in February 2012 in the Magistrates Court.  The father initially pleaded not guilty to the charges and expressed the intent to defend them.  On 1 February 2012 the father filed an affidavit in the Federal Magistrates Court proceedings.  He said nothing about a disclosure by the eldest child that the mother’s partner had made her touch his penis. 

17. The father, the paternal grandmother and the paternal step-grandfather were interviewed on a number of occasions by Mr C in the course of the preparation of his first family report in late January and early February of 2012.  Mr C records them as having told him of the allegations that the mother’s partner had put the child’s wet knickers in her mouth and had perpetrated other forms of discipline upon her.  However, he makes no reference at all to having been told by any of the paternal family members of an alleged disclosure by the child that Mr E had sexually abused her in Melbourne.  The father and the paternal grandmother in affidavits filed in February 2012 each depose to the fact that the eldest child was displaying signs of and saying things that indicated she was scared of the mother’s partner.  Nothing was said in those affidavits as to why she was scared, apart from the alleged discipline. 

18. The Magellan report reveals that on 26 April 2012 the Department’s Sunshine Coast office received a notification that the eldest child had stated that the mother’s partner made her touch his penis and made her move her hand up and down in a masturbating type motion. The Magellan report describes that as an “historical account”, no doubt referencing the fact that the child had not been in the care of the mother and her partner for at least seven months at that time.

19. As I have already observed, in his affidavit sworn on 14 May 2012 and filed the same day, the father deposed to the disclosures allegedly made by the child.  He said “over the last month, [K] has alleged that the mother’s partner [Mr E] made her touch [him] inappropriately”. The father said the child told him that Mr E made her take his penis in her hand and sexually stroke him.  He said she advised him that she just went “up and down with her hands” and even showed him the hand motions.  He said he asked the child where the mother was at the time to which she responded she was on the computer in the room next door.  Interestingly, he deposes to the fact that the child told him that she told her mother and her aunt and that they “were very angry with [Mr E]”.  Neither the father nor the paternal grandmother put this assertion to the mother in cross-examination. The father said that he had an interview with an officer from the Department of Child Safety and informed her of this disclosure and that the child was also interviewed by an officer of the Town G Police. 

20. Although the most recent Magellan report refers historically to a recorded interview of the child having been undertaken by Town G Police in 2011, I am quite satisfied that there must be a typographical error and that such an interview could not have taken place before late April 2012 when the disclosures were first alleged to have been made by the child.  Rather unfortunately, no recording of the interview has been produced by the Queensland Police Service. The Court was told that no recording has been able to be found by Queensland Police. The Magellan report does note that the child is said to have made a disclosure of performing a sexual act on her mother’s partner but was unable to particularise any events and that all her disclosures “just amounted to statements”. The police apparently determined that they were unable to progress the matter any further. 

21. In his oral evidence, under cross-examination, the father again agreed that he thought the disclosure by the child was likely to have taken place in or around late April/early May 2012. 

22. His oral evidence went much further than the affidavit that he had deposed to in May 2012.  He said that he had been lying on his bed with the child in the paternal grandparents’ home at around 7.30-8.00 pm just before the child’s bedtime one evening. He said they were playing video games together.  He said that he started asking the girl questions about whether the mother’s partner had hurt her when she then told him again about Mr E putting her wet knickers in her mouth and pulling her hair, before she then also said that he makes her touch his private parts.  The father said that he was so shocked at that disclosure that he asked her no further questions and simply went outside the room for 5-10 minutes to regain his composure.  He said he did not tell his mother or his stepfather that night, believing that his mother was in bed having gone to bed early because of her work situation and that his stepfather was watching TV.  He said that the next day he asked the child, when they were sitting in the kitchen, where she and Mr E were when the alleged incident happened. He said that she went on to show what she said happened by shaking her hand in a masturbation type action what it was that Mr E allegedly got her to do.  He said he told his mother and that they agreed to immediately take the child to the police station to report it to the police.

23. Under cross-examination, the paternal grandmother said that the father had told her of the disclosure and that she had agreed with him to take the child to the police station for the interview.  She gave evidence that she had never discussed the matter with the child and had never heard the child make such a disclosure about the incident.  In stark contrast, the paternal step-grandfather gave evidence under cross-examination that the child had first made the disclosure to him.  He said he thought it was in late 2011, not very long after she had come into the paternal household.  He said that she called him into his bedroom saying to him she wanted to tell him something. He said that she told him that the mother’s partner had got her to touch his penis and showed him the same masturbation like hand movements.  He said that he then told the paternal grandmother who then arranged with the father to take the child to the police station for an interview.  He said he was not aware whether the paternal grandmother and the child had ever discussed the matter themselves, but he did say that the child had told him and not the paternal grandmother and not the father.  He could not explain why he had said nothing about the disclosure in any affidavits sworn by him and filed in the proceedings.

24. Mr E denied ever having had the child touch his penis in any inappropriate way or at all.  The mother also gave evidence that she did not believe that Mr E had sexually abused the child in the way alleged.  They both make the case that the allegation has been manufactured against Mr E and was falsely made at a critical time in the proceedings when the matter was just a few weeks away from a final trial. 

25. Again, Mr C in the preparation of his family reports, uncovered some very relevant information.  Mr E is a very large man, not unfairly described as morbidly obese.  He struggles to walk and was short of breath when having walked only from outside the courtroom to the witness box during the trial.  Mr E gave evidence which was supported by evidence from Mr C who had spoken to Mr E’s treating medical practitioner who confirmed it, that he suffered from a condition which he has had since childhood which is described as a buried or concealed penis, where his penis is actually concealed or buried within his abdomen.  Mr E and the mother both said that Mr E had been impotent for several years and that they have not been able to have sexual intercourse or other sexual relations since before they left Queensland and went to Melbourne in 2009.  The mother’s evidence, seemingly supported by her partner’s evidence and his doctor’s reports, was that Mr E’s penis would not be able to be seen or touched by anyone when he is sitting on the toilet.

26. Of course, all of that evidence was rather embarrassing and painful for Mr E to hear and give.  I accepted that it was truthfully given and supportive of a finding that he did not sexually abuse the eldest of the two girls by having her masturbate him as the paternal family allege.

27. The total inconsistency between the evidence given by the father and his mother and the paternal step-grandfather about the alleged disclosure left me with serious doubts about the veracity of their accounts. In short, as with so much of their evidence, I did not believe them.

28. At the end of the trial, I was left completely unsatisfied that they were being truthful in their evidence in respect of the alleged disclosure and their denials that they had primed or coached the child to make the disclosure to the police that she apparently did in late April 2012.  Indeed, on the balance of probabilities, I am satisfied that one or more of the three of them has coached the child to make the allegation at the police station.

1. A number of other pieces of evidence assisted in me arriving at this conclusion.

2. A recorded interview between a police officer at Town G and the subject child that was undertaken in 2013 was admitted into evidence.  Initially, it was thought that it was a recording of the interview during which the child is said to have disclosed sexual abuse.  When viewing the video it became apparent that it was not.  The mother had made allegations in 2013 that the children had been exposed to pornographic videos in their paternal grandmother’s home.  She made complaints to the Department and to the police.  The police called on the paternal grandparents’ home to investigate the matter and spoke with the paternal grandmother.  The child was not there on that occasion and was later taken by the paternal grandmother to the police station for an interview about the subject matter.  My assessment of the interview was that the little girl was well and truly prepared for it in advance.  She completely exculpated the paternal grandmother from any responsibility or knowledge of her viewing pornography on the internet.  She attributed the responsibility for her viewing such material to a friend at school who gave her a website address and told her to go to that website and view the material without apparently revealing to her its content.  She said that she was in her bedroom in the paternal grandmother’s house and accessed the said website on her iPad, quickly realising it was pornographic and shutting it down.  The child, in my view, seemed at pains on at least two occasions during and at the end of the interview to assert to the police officer that her mother was a liar. When she made that assertion, she looked slightly uncomfortable but looked directly at the camera that she knew was recording the interview for what, in my opinion, seemed to be apparent approval.  I consider she probably believed her paternal grandmother was watching or would be watching.  The assertions that her mother was a liar were out of context in my view.  The police officer had not told the child during the interview that her mother had made the complaint or report.  When she was asked for an example of her mother lying, the child referred to having been told by her mother on a Tuesday that something was going to happen on the weekend, only to be told by her mother on the following Thursday that it was not going to happen.  There is evidence of that particular assertion being one that the paternal grandmother and step-grandfather each both complain of themselves.

3. The maternal grandfather gave evidence that the same child had actually told him during a conversation in the past couple of years that she did not like having to say things about her mother’s partner that were not true.  He said at the time they were not having a particular conversation about the matter and that he believed they were in the lounge room watching TV. He said that she simply turned to him and in a very matter of fact way, made that statement.  He said that he just acknowledged her statement and deflected the conversation.

4. As I said during the course of the submissions at the end of the trial, the maternal grandfather, Mr Mason, impressed me as one of the best witnesses in the case amongst both the paternal and maternal families.  He is actually the maternal grandmother’s second husband and is not the father of the mother in this case and is therefore not the biological grandfather of the two girls.  I considered that he was candid, truthful and extremely child focussed in his presentation.  I completely accepted his evidence. 

5. The paternal family when faced with evidence such as the evidence about the mother’s partner’s medical condition, still refused to accept that the mother’s partner might not have sexually abused the child as they were alleging.  When faced with evidence about other matters such as when the mother’s schizophrenic sister came to the paternal home in early 2013 and unilaterally coaxed the girls to go with her, away from the home without the knowledge or permission of the paternal grandparents, the members of the paternal family refused to give up their belief that the mother and the maternal grandparents and the schizophrenic sister were all involved in a conspiracy to abduct the two children that day. They simply refused to consider otherwise.   

6. I completely accepted the denials of the maternal grandfather, the maternal grandmother and the mother of a conspiracy to have the mother’s sister abduct the children as the paternal family allege.  The unwillingness of members of the paternal family to accept that they might be wrong on various matters, in the face of reasonable and credible evidence to the contrary, demonstrates the extent of the conflict and the polarised position that they have adopted in this matter.  They are clearly prepared to believe the worst and to express the worst of the mother and her family regardless of the objective merits of that position and, I am satisfied that they have gone as far as making up stories and false allegations and coaching the children to repeat those false allegations.

7. As Mr C has opined, that conduct in itself amounts to emotional abuse of the girls. It cannot be allowed to continue.

Other problems in the paternal household

1. There is evidence from the mother that during the years she was in a relationship with the father, for some time she lived with the father at the paternal grandparents’ residence.  Her evidence was that during that time the paternal step-grandfather abused alcohol and, more particularly, marijuana, the latter on a daily basis.  Her evidence was very particular.  I do not consider it was fabricated. She said she remembered the step-grandfather driving his 4WD away from the property on a regular basis and coming back with the car covered in red mud and dust with a supply of marijuana that he would then use himself and that the paternal grandmother and he would then distribute it to other persons including the father.  She said that the step-grandfather used to smoke marijuana out of a plastic or glass bong.  She said that the paternal grandmother took amphetamines in her presence on two separate occasions.  Of course, she has no direct evidence that this is still happening but she expressed the belief that it probably is.  Indeed, she gave evidence that the girls have told her that the paternal step-grandfather still smokes from a can. 

2. The paternal grandmother did admit taking amphetamines on two prior occasions but asserted that she no longer uses drugs.  The paternal step-grandfather admitted previously smoking marijuana but denied current use and denied that he has a current problem with alcohol abuse.  In evidence is a copy of the paternal grandmother’s criminal history.  In July 2007 she was convicted in the Magistrates Court of supplying dangerous drugs between October and December 2006, possessing dangerous drugs on 6 December 2006, possessing things used in the commission of a crime and possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act. She was convicted and fined $1,200. She gave evidence that she pleaded guilty to the charges despite not having committed the offences.  Her evidence was that her partner, the paternal step-grandfather, had committed the offences.  She explained her pleas of guilty by some vague assertion that the lawyers were somehow responsible and that the paternal step-grandfather was away working at the time.  Her evidence was that police came to the property and found a quantity of marijuana under one of the beds and that the supply charge arose because the quantity was deemed to be far more than required for personal use. She attributed responsibility for the possession and supply of the marijuana to others, to her partner, the paternal step-grandfather.

3. When the paternal step-grandfather gave evidence he accepted that the marijuana was his.  He said that he had hidden it under one of the beds and not even told the paternal grandmother about it.  He said that he did not supply marijuana to others.  He also said that he was away at the time.  However, counsel for the Independent Children's Lawyer pointed out during her cross-examination that the evidence shows that the charge arose shortly after December 2006 and that the convictions were recorded in mid-July 2007, over seven months later. The effluxion of almost seven months between the charges arising and the pleas of guilty being entered by the paternal grandmother belies the evidence given by both paternal grandparents about the paternal grandmother simply pleading guilty to take responsibility for the offence because the paternal grandfather was away.  The paternal step-grandfather simply could not explain under cross-examination why he was prepared to allow the paternal grandmother to plead guilty to offences he says he committed without her knowledge. 

4. Quite simply, I did not believe the evidence of the paternal grandparents about that issue.  That contributed to my satisfaction that they were not truthful witnesses at all.  Accepting the mother’s evidence that the girls told her that her paternal step-grandfather still smokes from a can, I am quite concerned that drug abuse and drug related criminal offences are probably still occurring in the paternal grandparents’ home. 

5. Other evidence that was adduced by the Independent Children's Lawyer from documents produced under subpoena by the Queensland Police Service and the Queensland Ambulance Service also created cause for serious concern about matters within the paternal household.

6. There is evidence that on Wednesday evening, 2 February 2011, the very same year the two subject children came into the care of the father and his parents, local police were called to a domestic violence incident that took place in the paternal grandparents’ home, after receiving a 000 call from the paternal grandmother.  According to police records, the paternal grandmother told them on arrival that about half an hour before their arrival she and the paternal step-grandfather had got into an argument.  He was working in his shed and was consuming alcohol at the same time.  He is said to have become stressed about circumstances at his workplace, in response to which the paternal grandmother is reported to have said to him that he would not “have the guts” to do anything to change his situation at work.  The police record that she told them that he then became very agitated, picked up a jerry can containing fuel and began pouring the fuel throughout the garage and then onto the couple’s motorcar. It records that she told them that the step-grandfather then entered the rear of the residence pouring fuel over the kitchen bench before going into the lounge room and splashing fuel over the lounge room furniture. The police record notes that during the 000 call the paternal grandmother advised that the paternal step-grandfather was threatening to burn the residence whilst doing this.  Police records reflect that the paternal grandmother told them that the step-grandfather had gone outside again with the jerry can and that she pushed him into the side of the house and took the jerry can from him.  He is said to have then gone back into the residence, gathered clothes and left the premises. 

7. In her oral evidence at the trial, the paternal grandmother, in my view, did her very best to minimise the seriousness of this conflict and the paternal step-grandfather’s behaviour.  Whilst she confirmed all of the content of the information recorded in the police records, she attempted to downplay the paternal step-grandfather’s responsibility for what can only be described as a horrendously terrifying act.  Indeed, the paternal grandmother admitted that she even had fuel splashed onto her in the course of tackling her partner to wrestle the jerry can from him. She gave evidence that she told him she had rung the police and that he should leave, whereupon he got into the motorcar and drove off even though he was under the influence of alcohol.  The paternal grandmother went as far as saying that the paternal grandfather’s behaviour was totally out of character and the result of stress that he had been going through and a momentary “snap”. Sadly, she went on to say that she had been partly responsible for his action by having provoked him verbally.  As I said when the paternal grandmother gave that evidence during the trial, I simply could not let such views be stated by her without response and recording my own view that terrifying violence such as that perpetrated by the paternal step-grandfather that day cannot be excused and should not somehow be accepted by the victim as being partly her responsibility.

8. The step-grandfather also minimised the events and his responsibility for them.  He refused even to admit or accept that the act was an act of violence directed towards the paternal grandmother.  He gave evidence that it was not directed at her at all.  I did not accept that and I did not let it go without response, telling him respectfully that he was simply wrong in his view.  When I asked the paternal step-grandfather whose property it was, he replied that it was a rental property and quipped that it was their furniture that he had poured petrol on in any event. 

9. The paternal step-grandfather’s evidence was that it was a momentary piece of insanity on his part and out of character.  I do not accept that description.  There was other evidence about the step-grandfather’s incapacity to manage his behaviour when angry.  He accepted that when the father left the paternal home to live on the streets as a youth, that he, the paternal step-grandfather, had gathered up all of the father’s personal possessions and clothing, piled them into a pile in the yard of the house they were living in at the time and burnt them.  In evidence, he showed no remorse for that action, simply saying that it was justified by the father leaving them behind.

10. There was evidence before the Court that in March 2013, apparently just after the father had been released from prison, there was conflict at the paternal family’s house whilst the two girls were living with them at that time, that resulted in the ambulance and the police being called to the home and the father being removed and taken to Hospital J for a mental health admission.  Ambulance records produced under subpoena and adduced into evidence record that the ambulance officers that attended at the home were told that the father had self-medicated on a large amount of prescription medication in the period leading up to their call.  The father was taken to the Hospital J but released later that day.  Police records reflect that the very same night at around 9:00 pm they were called back to the residence with further disturbances happening between the father and the paternal step-grandfather.  Police records reflect that they were informed that the father and paternal step-grandfather were arguing about medication, the father having attempted to take some of the step-grandfather’s medication. The record reflected that they were also arguing about “other parenting issues” in respect to the father’s children.  There had been apparently a minor scuffle between the father and the step-grandfather.  Police records reflect police observation that the paternal grandmother and paternal step-grandfather were each under the influence of alcohol.  Police records reflect that they transported the father to Hospital J for treatment even though he had asked them to take him to a friend’s home.  Police records reflect that they were told that the two children were in their bedrooms and although they might have heard the altercation, they were not exposed to it directly.

11. I am satisfied that the only persons from whom the information recorded by police in their records could have been provided were the paternal grandmother or the paternal step-grandfather or the father himself.  It is of significance, in my view, having regard to this fact, that under cross-examination in the trial all three witnesses denied that the argument between the father and the paternal step-grandfather on that night in March 2013 had anything to do with “parenting issues” in respect of the two girls.  I did not accept their denials.  I was satisfied that they were simply denying it, believing that any admission of same would hurt their case.

12. A doctor from Hospital J who saw the paternal family members that day, completed a Report of Reasonable Suspicion of Child Abuse and Neglect form after his time with them. He recorded that there had been “multiple episodes of unprovoked verbal outbursts” and “violent outbursts towards grandmother” by the father. I am satisfied that only the paternal grandmother, police or ambulance officers could have given that information to the doctor. The doctor recorded suspected abuse of drugs by the father in the previous 48 hours and that he had referred the father to drug and alcohol rehabilitation services. He recorded that he told the paternal grandmother that the matter was being reported to the Department of Child Safety too.  

13. There was also evidence that one of the girls told members of the maternal family that the father and paternal step-grandfather were fighting again on Christmas Day 2013 and that a glass got smashed. There were denials of this by the paternal family members. I did not believe those denials.

14. There was evidence given by all the parties about another incident that happened at an extracurricular school event in the latter part of 2014.  There was a festival being conducted by the school at which there was a choir performance in which the eldest child, at least, appeared and performed.  The paternal grandparents were at the festival.  The mother, her partner and the maternal grandparents were also at the festival.  A confrontation occurred.  The paternal grandparents each allege that the mother started the confrontation by saying something rude and abusive to the paternal grandmother in the presence and hearing of the two girls.  I do not accept their version of events and find that they have both relayed a story that is not true again realising that the truth would hurt their case. 

15. The evidence of the mother and the maternal grandfather, which I accept, is that the mother saw the girls come off the stage after their performance and go to talk with the paternal grandparents.  The eldest child was seen becoming a little upset, so the mother went over to hear the paternal grandmother admonishing her for her behaviour on the stage in that she had been looking around rather than looking at the teacher. The mother said that she then went to take the girls, saying to them that they needed to go and get something to eat, whereupon the paternal step-grandfather began to abuse her in the presence of the girls. It was said that he called her a “fat pig” and said that she had no right to be there and that her “paedophile” partner had no right to be there either. The mother said that she became upset and then responded by calling the paternal step-grandfather a paedophile as well.  She said she then turned around to walk away with the girls only to be followed by the paternal step-grandfather and harassed and abused for some time.  She said that the maternal grandfather had to put himself between her and the girls and the paternal step-grandfather to prevent him from touching her.  Her evidence was that the paternal grandmother then sought to intervene and admonished the paternal step-grandfather for his conduct, drawing abuse from him and a push which almost knocked her to the ground.  The maternal grandfather’s evidence corroborated the mother’s evidence completely.  The paternal step-grandfather, although denying that he had commenced the argument, admitted that he had followed the mother abusing her because he “got [his] back up”. 

16. In her oral evidence the mother accepted that she had responded inappropriately when she called the paternal step-grandfather a paedophile and appeared remorseful for her conduct.  I accept that she was.

1. There was a great deal of evidence pointing to the fact that the father and his mother have had a relatively volatile relationship over the years and that he remains controlled to a significant extent by his mother’s wishes, particularly in respect of the care of the two girls.  There was evidence that the relationship between the paternal grandmother and the paternal step-grandfather is also volatile.  Indeed, there was cogent evidence suggesting that they might have even had a separation in or around November last year when the girls are recorded by the psychologist they were seeing at the time as telling her that their paternal step-grandfather had “gone missing” and not even their paternal grandmother knew where he was.  Although the father, the paternal grandmother and the paternal step-grandfather all gave evidence denying a separation, they did all say that the paternal step-grandfather had sometime last year purchased a business which he operated out of Town L and that he simply travels down to Town L from his home for anything between two to seven days at a time, three to four times a month. Despite that evidence, I was left in quite some doubt about the current state of the paternal grandparents’ relationship and its short and long term stability.

2. There was also clear evidence that the relationship between the father and his step-father is a volatile one. 

3. The step-grandfather said he had not undertaken an anger management course or any courses in respect of his drug and alcohol abuse, simply asserting that he did not have any problems that needed such treatment.  On the other hand the father gave evidence that a condition of his current probation is the completion of an anger management course.  He said that he had made enquiries about a course in the week before the trial.  He did not say that he was booked into one and he gave no evidence about when it is likely to start. 

4. On 25 July 2013, Principal Registrar Filippello made orders between the parties in this case which included an order that all of them each attend and complete a post orders parenting program within six months of the date of the order, that is, by 25 January 2014.  Each was to provide to the Independent Children's Lawyer a certificate confirming their compliance with the order once the course had been completed.  The mother did the course.  The maternal grandparents did the course.  The paternal grandmother did not do the course.  The father did not do the course. 

5. The paternal grandmother offered the excuse that her solicitor had not told her about the order and that she only found out about it from Mr C, later in time.  She then said that she made some enquiries about such a course but the times offered for attendance at the course presented as inconvenient to her in respect of her work as a healthcare worker on the Sunshine Coast.  Her evidence reflected no sense of appreciation of the seriousness of her obligation to comply with the order.  I got the impression rather that she simply did not consider she needed to attend such a course and was not interested in doing so. 

6. As to the father, he really did not even offer any form of excuse for not having complied with the order to do the course.  I am satisfied that he simply thought it was an inconvenience that he did not need to bother with.

7. Given the high level of conflict in this case, I am satisfied that the father should attend an anger management course and a parenting orders program.  I am satisfied also that the paternal grandparents should attend a parenting orders program.  Given the non-compliance of the paternal grandmother and father with the previous order to attend and complete a parenting course, I consider it in the best interests of the two little girls in this case to make any unsupervised time that they spend in their father’s care and their paternal grandparents’ care, conditional upon those adults having completed the necessary courses.  The order I made provides for same.

8. The mother and her partner both gave evidence of another disturbing recent development in the matter.  Their evidence was that in recent weeks and months the paternal step-grandfather has been turning up unexpectedly in their lives.  Most particularly, he was turning up often during the three weeks of the recent Christmas school holidays that the children were spending time with the mother and her partner at their home in Town N, just near Town L.  Their evidence was that the paternal step-grandfather was acting in an intimidating and harassing way; following them in his motorcar when they were driving in theirs; rudely gesturing at them and blowing the horn at them; turning around and following them when he passed them driving in the opposite direction; and presenting himself as a general nuisance.  The maternal grandmother also gave evidence that one of the two girls had complained to her about the fact that her paternal step-grandfather had followed them in the way described by the mother and her partner and that they were scared as a result. 

9. The paternal step-grandfather denied the allegations.  He said that as he is operating his business out of Town L he just happens to be coincidentally in the area when they see him.  I did not believe his evidence.  Again, I consider that he was not telling the truth and am satisfied that he has acted in an intimidating and threatening way towards the mother and her partner in recent times.  The mother’s evidence was that on one occasion he had even followed them in the car to the Town L Police Station where they stopped whereupon he jumped out of his car and ran up to the door of the police station before turning around and running back to his own car.  The mother said that she went and complained to the police who recommended that she seek an injunction or a peace and good behaviour order against the paternal step-grandfather in the circumstances. 

10. In what I perceived to be an attempt to persuade the Court to believe his false denials, the paternal step-grandfather said that he would readily agree to an injunction being ordered restraining him from acting in the way alleged.  Given that I accepted the evidence of the mother, her partner and the maternal grandmother, I determined that such an injunction, directed against the paternal step-grandfather and the paternal grandmother, should be made in the children’s best interests.

11. I have mentioned the fact that the paternal grandmother arranged for the two girls to attend upon a psychologist.  There had been some concern expressed during the earlier years of the proceedings being before the court that she had done nothing to secure counselling for the girls in circumstances where they are experiencing significant emotional trauma as a result of the conflict existing between the two families.  Just before the directions hearing before the Magellan Registrar earlier last year, when the matter was to be given trial directions, the paternal grandmother arranged through her general practitioner to take the two girls to see a psychologist on a mental health plan.  She located a psychologist in Town O, went to see her on her own, told her about the matter including that the mother was a deceptive liar and then arranged to bring the two girls for counselling.  She did not discuss this with the Independent Children’s Lawyer, the mother or the maternal grandparents.  They did not know such counselling was happening. 

12. Curiously, when she was giving her oral evidence during the trial, the psychologist said that she simply assumed that the Independent Children's Lawyer and the mother were aware of and approved of the counselling appointments without having made any of her own enquiries to satisfy herself of same.  Interestingly though, the psychologist went on quickly to assert that she was under no professional obligation to do so in any event. 

13. In her oral evidence, the psychologist said that the paternal grandmother had told her at the first appointment that she would like a report to be provided by the psychologist at the end of her sessions.  Clearly, I am satisfied, the paternal grandmother took the children to counselling more as an evidence gathering exercise rather than a remedial exercise.  The psychologist last saw the girls in November 2014 and then prepared a report. 

14. Only after the report was in the hands of the paternal grandmother did the paternal grandmother tell anyone, including the Court, that the girls had been to counselling and a report had been obtained that the paternal grandmother sought to use in evidence.  I am satisfied that had the paternal grandmother not considered the report to be supportive of her case that none of the parties or the Court would have been told of its existence. 

15. In the psychologist’s written report, she refers to disclosures having been made to her by the children about the matters of alleged abuse at the hands of the mother’s partner.  She also reported that the girls reported being scared of the mother’s partner and conflicted about where they wanted to live. Importantly though, in her oral evidence the psychologist agreed with the proposition put to her by counsel for the Independent Children's Lawyer that she had no way of determining whether disclosures made to her by the children were the product of the children’s actual memories of real events or the product of false memories instilled in them by adults. 

16. Importantly, the independent expert, Mr C, who has been involved in the case over three years, was clear in his evidence that the youngest of the two girls was quite firm and consistent in her desire to live with her mother rather than her paternal grandparents and that the eldest of the two girls was indeed conflicted and said that she would prefer if all of the adults could get on and live together. 

17. Without wanting to be too critical of the psychologist who was engaged by the paternal grandmother, it is so often the case that the Court obtains little if any assistance from reports of psychologists who have treated children whilst highly conflictual parenting proceedings are pending in the courts on the instruction of one side of the case and without reference to or regard for the position of, or any input from the Independent Children's Lawyer, independent family report writing experts or the other parent.  It can only be hoped that psychologists retained in such circumstances give greater consideration to their professional position and to the value of their opinions expressed in such circumstances. 

The girls’ relationships with the significant adults in their lives

1. Mr C’s observations and opinions made and expressed over three years were quite influential in this case.  I accepted all of them as truthful and accurate and soundly based.  It seriously damaged the credibility of the members of the paternal family for them to be roundly criticising the professionalism and honesty of Mr C from the moment of his first engagement in the case.  Indeed, Mr C is to be congratulated for maintaining an objective professional approach to his task notwithstanding the secrecy, the rudeness and the treatment he received from the members of the paternal family over time, particularly from the paternal step-grandfather. 

2. Mr C was completely satisfied that the mother was a competent and loving mother who had a very warm and caring relationship with her two children and that her love for them was reciprocated by them towards her. For the last couple of years he has been strongly advocating for the girls to be returned to her full-time care. 

3. Mr C did not consider that the father had yet fully come to terms with his problems with alcohol and drug abuse or that he was really in a position to offer appropriate full-time parenting to the girls just yet.  However, he was optimistic, particularly given the presence in the father’s life of a new female partner, that things are improving for the father. I considered he might be right. Mr C acknowledged that the girls loved their father and enjoy his company and thought that the father and the mother, in time, would be able to actually work out appropriate co-parenting arrangements between them where the girls got to spend regular time with the father.  Satisfied of those matters, I made orders that provide for the children to spend time with their father on alternate weekends and for half of their holidays, conditioned upon their time with him being supervised until he completes the two courses that I have already referred to.

4. Mr C acknowledged that the two girls have a close and loving relationship with their paternal grandparents but was quite clear in expressing the opinion that they were being primed and coached in respect of their views about their mother and their maternal family members, giving ample references to factual observations that, in my view, reasonably supported his opinion about that.  Good examples of such facts were his descriptions of occasions when he was told by one of the adults that the girls did not want to go and see their mother or their maternal family members in front of the girls, whereupon the girls were then asked by one of those adults to tell Mr C what they had told the adults earlier, with the girls responding in ways that suggested that the views they quietly expressed were not genuinely held by them but were being expressed to accord with the wishes of the adults around them.

5. Mr C expressed the view that the girls were resilient enough to cope with a change of school that would come with placing them with their mother.  I am satisfied of that and I have acted as quickly as I have in respect of making orders and delivering these reasons specifically so that the girls did not have to go back to the same school that they had previously been attending for any time this year before commencing at a new school whilst living in their mother’s care. 

6. As I pointed out to all of the parties during the course of the trial, it seemed to me that the conflict between the families in this case, particularly between the paternal grandmother and the paternal step-grandfather and the mother’s side of the family, was such that it is hard to expect that the children could have emotionally worthwhile relationships with the other side of the family whilst living with the maternal side or the paternal side.  Indeed, the paternal grandmother’s case, as run through the trial, was that the children continue to live with her, spend alternate weekends with their father and cut back to only one weekend a month with the mother. The mother’s case was that they live with her and only have supervised time with their father and their paternal grandparents. 

7. Ultimately being satisfied that it is likely that the children would have difficulty maintaining meaningful relationships with the other side of the family whichever side of the family they lived, I was quite satisfied that their best interests will be served by living with their mother full time whilst spending regular time with their father, unsupervised after he has completed the courses that he must first complete. 

8. The most difficult part of my determination was deciding what time, if any, the children should spend, in the promotion of their best interests, with their paternal grandparents.  Being satisfied that those grandparents were dishonest and had been emotionally abusive of the girls in respect of their relationships with their mother and the rest of their maternal family over the last three years and that there is little prospect of that changing significantly in the future, I determined that the children’s best interests would be served by firstly having a break from spending time with their paternal grandparents for a few months and, secondly, only commencing to spend time with them in the supervision of a children’s contact centre and then, thirdly, that they only start seeing them on an unsupervised basis when the paternal grandparents have completed a parenting orders program that it is hoped will help them adopt a better attitude to the maternal family, and in circumstances where their father takes them to their paternal grandparents and is present with them during such time. 

9. I consider that last condition necessary after having formed the view that it is indeed the paternal grandmother in this case who has determined that the children live with her and not the father over the last three years, even though the orders that governed the parenting arrangements throughout that time specifically provided for the children to live with the father.  I accept the submission that was made by counsel for the mother that the father seemingly is directed in his decision making in respect of parenting of these children by the paternal grandmother and in accordance with what she wants.  I am satisfied that for that to continue is not in the children’s best interests.  I am satisfied that the father wants to start playing more of a role in the children’s lives but that his relationship with his mother so far has prevented him from doing so to a large degree.  Although I do not consider that it truly reflected what she actually wanted, the paternal grandmother did say during the course of the trial that ideally it is in children’s best interests to live with one or both of their parents.  She also agreed that if she could be satisfied of the safety of the children that they should live in their mother’s care.  The paternal step-grandfather also told the Court that the Court could be satisfied that the relationships between him and the father and the paternal grandmother and the father were such that the paternal grandparents would get to spend time with the children at the discretion of the father during times that the children are in the father’s care.  He agreed with the proposition that in such circumstances an order in favour of the children spending time with him and the paternal grandmother was not necessary. 

10. Of course, over the last three years particularly, but even the years before that, the children have developed quite close relationships with their paternal grandparents.  Severing those completely is likely to cause them some distress.  In the normal course of events, it is in a child’s best interests to live with one or both of its parents and to have healthy relationships with both sets of grandparents, if that is practicable.  However, as I have said in previous judgments, putting children with grandparents who would expose them to toxic, emotional abuse, is simply not in their best interests.  That will not happen whilst the grandparents have supervised contact. Of that I am satisfied.  The independent professional supervisors at a children’s contact centre are not likely to let that happen. 

11. Pursuant to the orders I made on Wednesday, the children’s time with the grandparents will only progress to unsupervised time away from a contact centre when the grandparents have both successfully completed parenting orders programs and the father has completed a parenting orders program and an anger management program and retains control over the time the children get to spend with his parents.  In my judgment, that is how it should be in this case.  I do not expect that the father, once he has completed his course and has begun to spend regular supervised time with the children would tolerate ongoing emotional abuse of those children by his parents.  He clearly now will appreciate the consequences of such conduct. 

12. In conclusion, it is to be hoped that these two young girls are now allowed to get on with the rest of their childhood, quarantined from the emotional abuse that has characterised the last several years of their lives.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 30 January 2015.

Associate: 

Date:  30 January 2015