Lamarre & Lamarre
[2024] FedCFamC1F 705
•21 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lamarre & Lamarre [2024] FedCFamC1F 705
File number: PAC 6726 of 2023 Judgment of: AUSTIN J Date of judgment: 21 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Parenting – Where the paternal grandparents review interim parenting orders made by a Senior Judicial Registrar (“the registrar”), which provide for the children to spend supervised time with them – Where the paternal grandparents seek orders for the children to live with them and spend supervised time with the mother – Where the paternal grandparents assert the mother poses a risk of physical and psychological harm to the children – Where the mother has passed the psychological assessments given by the single expert – Where the younger child made allegations of his sexual abuse by the paternal grandfather – Where the allegations were not substantiated by the authorities but the risk of harm is not eradicated – Where the trial is the time and place to settle factual controversies – Where the father lives overseas and is not a residential option for the children – Orders made to vary the length of supervised time the children spend with the paternal grandparents. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61C, 61D, 64B, 65D, 65AA, 69ZL Cases cited: Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bustillo & Bustillo [2024] FedCFamC1F 556
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Division: Division 1 First Instance Number of paragraphs: 76 Date of hearing: 21 October 2024 Place: Newcastle (via Microsoft Teams) Counsel for the Applicants: Mr Apelbaum Solicitor for the Applicants: T & S Law Firm The First Respondent: Litigant in person The Second Respondent: Litigant in person Solicitor Advocate for the Independent Children's Lawyer: Mr Gonzalez Solicitor for the Independent Children's Lawyer: Gonzalez and Co ORDERS
PAC 6726 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR B LAMARRE
First Applicant
MS C LAMARRE
Second Applicant
AND: MS LAMARRE
First Respondent
MR LAMARRE
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
22 OCTOBER 2024
THE COURT ORDERS THAT:
1.Order 3 made on 5 January 2024 is discharged.
2.Orders 4, 5, 8, 11, 14, 16 and 18 made on 8 July 2024 (as amended under the slip rule on 24 July 2024) are discharged.
3.The parties shall take all reasonable steps to ensure the children spend supervised time with the paternal grandparents from 10.00 am until 5.00 pm each Saturday (or Sunday in the alternative), upon the following conditions:
(a)the supervisor shall be the supervisor agreed between the parties or, in default, appointed by the Independent Children’s Lawyer (“the ICL”);
(b)the mother and the paternal grandparents shall forthwith contact and satisfactorily complete any intake procedures required by the supervisor;
(c)the venue at which the children spend time with the paternal grandparents shall be designated by the supervisor;
(d)the paternal grandparents shall pay the costs of the supervisor;
(e)the parties shall comply with all reasonable requests and directions of the supervisor; and
(f)leave is granted to the parties to provide a copy of these orders to the supervisor.
4.Any and all other outstanding applications for interim parenting orders are dismissed.
NOTATION
A.The undischarged orders made on 5 January 2024 and 8 July 2024 (as amended on 24 July 2024) continue in force.
party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the superviso
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lamarre & Lamarre has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the determination of the paternal grandparents’ application to review the interim parenting orders made by a senior judicial registrar (“the registrar”) on 8 July 2024 (amended on 24 July 2024) in respect of two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
BACKGROUND
The proceedings were brought by the paternal grandparents, to which the children’s parents are the respondents. The mother is the first respondent. The father is the second respondent.
The parents married in 2009.
The children were born in 2015 and 2018. They are now aged eight and six years.
The father contends he and the mother separated in 2019 but that they remained living under the same roof until May 2021. The mother contends she and the father did not separate until May 2021, when the family returned to Australia from living overseas. In any event, there is no doubt the parents remained living in the same household until May 2021. Three months afterwards, in August 2021, the father returned to live in Country D, where he has lived ever since.
There is a curious factual dispute about with whom the children have lived since their return to Australia in May 2021. The mother says she was forced out of the family home in May 2021 and it was several months before the children’s residence with her was restored in August 2021. The paternal grandparents and the father all allege the children lived with the paternal grandparents until December 2023, when the mother abducted them. She denies their abduction, but admits police were involved to ensure the children’s return to her when they were withheld. Given this is an interlocutory hearing and the evidence is untested, despite the apparent contrary expectations of the paternal grandparents, those factual disputes cannot be resolved.
The paternal grandparents started the proceedings in December 2023. The mother responded to their application in January 2024.
Based on representations made by the younger child, the mother reported the younger child’s sexual abuse by the paternal grandfather in December 2023. The allegations were investigated by the authorities and were not substantiated. The investigation concluded in late January 2024.
On 5 January 2024, interim orders were made providing for the mother to have sole parental responsibility for the children, for the children to live with her, and for there to be no interaction between the children and the paternal grandparents. In addition, the father was joined to the proceedings and an Independent Children’s Lawyer (“the ICL”) was appointed. Not long afterwards, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1) on account of the sexual abuse allegations.
Notwithstanding the interim orders made in early January 2024, the father and the paternal grandparents both filed applications in April 2024 to vary them, applying for the children to instead live with the paternal grandparents. The father filed an Application in a Proceeding on 4 April 2024, to which the paternal grandparents responded on 24 April 2024 and the mother responded on 30 April 2024.
The parties’ various applications and responses were listed for hearing before the registrar on 3 July 2024. By that time, the paternal grandparents and the father were advocating for the children to live with the paternal grandparents due to the alleged risks of harm posed to the children by the mother, whereas the mother and the ICL were advocating for the children to live with the mother, which at least the mother contended was due to the risk of harm posed to the children by the paternal grandfather.
The registrar reserved and then delivered judgment on 8 July 2024. The orders were amended on 24 July 2024 under the slip rule, but not so as to affect the current discussion.
The orders made by the registrar provided for: the father to spend time and communicate with the children (Orders 1, 2, 6 and 7); the children to spend supervised time with the paternal grandparents (Orders 4, 5 and 8); various restraints upon the parties (Orders 9–11); and other miscellaneous orders (Orders 12–21). No orders were made to disturb the earlier orders made in January 2024 investing the mother with sole parental responsibility for the children and requiring them to live with her.
By an Application for Review filed on 24 July 2024, the paternal grandparents review only two orders made by the registrar (Orders 4 and 5), but the relief they seek actually entails the discharge of the residence orders made on 5 January 2024, not just the discharge of the supervised time orders made on 8 July 2024.
As this dispute relates to interim parenting orders, these reasons for judgment are given in short form (s 69ZL).
PROPOSALS
The paternal grandparents applied for the orders set out in their Application for Review filed on 24 July 2024, requiring the children to live with them and to spend supervised time with the mother. Alternatively, they would like the children to spend substantial amounts of unsupervised time with them each week.
The father sought the orders set out in his Case Outline filed on 2 July 2024, requiring the children to live with the paternal grandparents and to only spend time with the mother as determined by the Court. He did not seek to review and did not speak against the orders made by the registrar requiring the children to either spend time or communicate with him, depending upon his presence either in Australia or overseas.
The mother did not seek to merely maintain the orders made by the registrar. She sought the orders set out in the Case Outline document dated 26 June 2024, which she prepared for the registrar, relevantly seeking that the children spend no time at all with the paternal grandfather and very little supervised time with the paternal grandmother.
The ICL sought to maintain the orders made by the registrar.
EVIDENCE
The paternal grandparents relied upon their respective affidavits filed on 20 June 2024 and various documents tendered as exhibits, some of which were never mentioned again.
The father relied upon his affidavit filed on 30 May 2024.
The mother relied upon her affidavit filed on 30 April 2024.
The ICL did not separately adduce evidence.
The parties and the ICL all relied upon:
(a)the Magellan Report dated 22 January 2024, furnished to the Court by the State child welfare agency; and
(b)two reports prepared by the single expert psychologist on 15 October 2024 – the family report and a mental health report in respect of the mother.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child’s best interests (s 60CC).
Parental responsibility for children is vested in their parents (s 61C(1)), whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). Since legislative amendments took effect on 6 May 2024, parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.
This is a review hearing, which entails the de novo hearing of the parties’ interim dispute. The principles to which I have just adverted apply equally to interim parenting orders.
Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Banks v Banks (2015) FLC 93-637 at [47]–[50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.
CHILDREN’S BEST INTERESTS
Section 60CC(2)(a)
The Magellan Report reveals several allegations about the children’s safety have been made to the State child welfare agency since December 2023.
An allegation was made in December 2023 that, two years beforehand, the mother poured bleach over the younger child. The child was not injured. The complaint was closed without further assessment. Another report was made in January 2024 that, six months beforehand in June 2023, the children smelled of bleach and the elder child said the mother had washed them in bleach. Another report was made in late January 2024 that the mother had threatened to physically harm the children, but the report was not investigated due to insufficient evidence.
An allegation was first made in December 2023 that the younger child recently disclosed his sexual abuse by the paternal grandfather on two occasions in early 2023 and December 2023. The alleged sexual abuse took the form of the paternal grandfather touching and sucking the younger child’s penis.
The younger child was formally interviewed in late 2023. He alleged the paternal grandfather had twice bitten him on his “pee” and told him he would “cut off his pee pee” while staying over at the paternal grandparents’ home. The younger child also made multiple allegations of physical assault by the paternal grandfather, which at face value seem rather florid. On legal advice, the paternal grandfather declined to speak to police when asked about the allegations.
A second report of the same form of sexual abuse was made in early 2024, following a repeat allegation by the younger child.
The elder child was then interviewed by the child welfare officers during a home visit in early 2024. She said she had not experienced any “bad touching”, but confirmed the younger child told both her and the mother the paternal grandfather had sucked and hurt his “pee pee”. She also alleged being physically abused by the paternal grandparents.
The child welfare agency completed the investigation in early 2024, concluding the allegations of the children’s sexual and physical abuse by the paternal grandfather were not substantiated.
A short time later, the paternal grandfather told child welfare officers he denied all allegations of sexual and physical abuse of the children.
Alleged risks posed by the mother
The paternal grandparents assert the mother poses a risk of both physical and psychological harm to the children, though their submissions appeared to conflate allegations of risks to their safety (s 60CC(2)(a)) and allegations of the mother’s unsatisfactory parenting capacity which deprived the children of an optimal residential experience (s 60CC(2)(d)). Attempts to separate those different considerations failed. The submissions were advanced indiscriminately in conglomeration.
The paternal grandparents’ sundry allegations of the mother’s obsession with cleanliness and her failure to provide proper emotional care to the children will be considered later under s 60CC(2)(d) of the Act.
For the purpose of s 60CC(2)(a) of the Act, as articulated in the hearing, the paternal grandparents allege the mother abused the children in the past, including by dousing them with bleach and scrubbing them clean to ensure their hygiene (as alleged to the child welfare agency) and by hitting them (which allegation does not seem to have been made to the child welfare agency), which behaviour they postulate might be at least partially attributable to her diagnosis with Obsessive Compulsive Disorder.
The paternal grandparents were impelled to concede they know nothing of what occurs within the mother’s household, save what may have been reported to them by the children, which exposes the paradox of them taking an inconsistent approach to the evidence. Their primary application for the children’s residence and for the children to spend only supervised time with the mother entails their assumption that the evidence which implies risks of harm to the children should be treated differentially. To the extent the evidence adversely implicates them, they say it should be disregarded or given no weight, but to the extent the evidence adversely implicates the mother, they say it should be accepted as being probative.
The children may have told the paternal grandparents in the past of them being hit or washed in bleach by the mother, but the hearsay evidence is of such little weight it does not demand a finding that the children’s safety depends upon their immediate removal from the mother’s residential care and the caution of them only seeing her under professional supervision.
As was submitted, the paternal grandparents’ proposal hinges upon a finding the mother currently suffers from Obsessive Compulsive Disorder, but the untested evidence falls far short of establishing the fact. In response to a request to extract the very best excerpts of expert evidence cited in support of their submission about the mother’s psychological infirmity, the paternal grandparents referred to this:
83.In this context, it is considered likely that [the mother’s] OCD symptomatology has persisted at least at some level and therefore it could be argued that such symptoms – whilst they remain unaddressed – would present significant challenges in relation to her parental capacity and potentially pose a risk of harm to the children in her care.
(Single Expert Psychological Report dated 15 October 2024)
401.The findings of the psychological assessment were inconclusive in relation to providing a diagnosis of OCD or otherwise based on the mother’s accounts of her current presentation and functioning…
(Single Expert Family Report dated 15 October 2024)
Evidently, the single expert does harbour doubts about the mother’s psychological stability, but no more. There is no diagnosis. The mother passed the psychological assessments she was given in the “normal range” and the only historical evidence of medical intervention for her was her consultation of a psychiatrist in 2019 for “anxiety”.
Importantly, although not mentioned by the paternal grandparents, the single expert also said this:
40.Based on the information available, [the mother] would not currently meet the criteria for any clinical disorder according to the Diagnostic and Statistical Manual of Mental Disorders. Fifth edition (DSM-5).
(Single Expert Psychological Report dated 15 October 2024)
Alleged risks posed by the paternal grandparents
The mother asserts the paternal grandfather poses a risk of harm to the children on account of the younger child’s allegations of his sexual abuse by him, which risk the mother alleges is not alleviated by the presence of the paternal grandmother.
Although the authorities did not substantiate the allegations, the risk of harm is not thereby eradicated. The younger child made his allegations of sexual abuse to the authorities, so there can be no doubt the allegations were actually made. The paternal grandparents are unable to assert the allegations are concocted because nobody has heard the allegations aside from the mother. The younger child has reported the allegation, reasonably consistently, to the mother, the maternal aunt, the elder child and the investigating authorities. The reliability of the younger child’s allegations is a quite separate issue.
The mother also alleges both paternal grandparents threaten the children’s safety on account of them striking and shouting at them. This allegation relies upon the mother’s direct observations of the paternal grandparents’ past behaviour, not just upon the children’s reports of it to her. In addition, the children both alleged the paternal grandparents’ physical abuse to the authorities. Again, the allegation may not be true, but it was independently made by the children to third parties.
Section 60CC(2)(b)
The paternal grandparents admit the elder child has expressed her desire to live with the mother. She repeated those views to the single expert.
The younger child expressed his wish to live with the father, but the father has declined to make himself a residential option to this point in time.
Neither child expressed the desire to live with the paternal grandparents.
The single expert concluded the children’s expressed views should be interpreted sceptically (fr 370, 380). They are. No weight is reposed in them.
Section 60CC(2)(c)
The single expert opined this about the children’s need for emotional succour:
346.In any case, it can be confidently inferred that these children have experienced significant attachment disruption and adversity in their young lives thus far.
(Single Expert Family Report dated 15 October 2024)
The children lived with their parents until May 2021 and they have lived with the mother since December 2023. There is dispute about with whom they lived between May 2021 and December 2023, but the paternal grandparents assert it was with them, so it follows that their case is the children’s best interests are now served by another residential change on an interlocutory basis. Having regard to the principles distilled by the Full Court in Goode & Goode, the children’s best interests would actually be served by some residential stability, unless the risks to their safety within their current residential environment demand a change.
Section 60CC(2)(d)
The single expert certainly entertains concerns about the mother’s capacity for insight. He said this in the family report and psychological report:
385.During formal and informal observations of the mother and children together, the mother impressed as lacking insight and struggling to implement boundaries and limitations with the children – particularity with [the younger child]. Aspects of the children’s observed disinhibition and impulsiveness may be related to this aspect of the mother’s parenting. The mother impressed in general as having quite a passive parental style and rather unsophisticated parental skills. It would be considered in the best interests of the children for the mother to engage in extensive parental training in order to develop her parental skills and insight.
(Single Expert Family Report dated 15 October 2024)
9.[The mother] expressed self-confidence in her level of insight into her emotional condition and her capacity to manage her mental health. However, [the mother’s] actual level of insight and self-awareness in this regard was evaluated as questionable given particular aspects of her accounts – for example, the manner in which she described her emotional state being unaffected during periods of being victimised by alleged family violence.
(Single Expert Psychological Report dated 15 October 2024)
However, the single expert properly acknowledged that the mother’s denial of adverse mental health symptoms might be correct and, in that event, the single expert conceded this:
62.Should [the mother’s] accounts of her mental health be accurate then it would be difficult to conclude that her general parental capacity is negatively impacted. However, as aforementioned [the mother’s] isolation of affect is considered a relevant factor to consider in regard to prognosis for her mental health.
(Single Expert Psychological Report dated 15 October 2024)
Given the single expert’s unrequited suspicion about the mother’s OCD symptoms, he said this:
79.Longer term, children with a parent with OCD are at higher risk of developing anxiety, emotional dysregulation, attachment insecurities, and various other social, emotional, and behavioural issues.
(Single Expert Psychological Report dated 15 October 2024)
Such possible risks for the children in the “longer term” are not a sufficient foundation to now impulsively intervene and reverse the children’s residential arrangements, settled by the interim orders made in January 2024.
The paternal grandparents raised the youngest child’s faecal incontinence as an issue which compromised the mother’s parenting capacity. The father alleged the younger child was diagnosed with a medical condition, which would be alarming if that were true, but there is no medical evidence to confirm it (at [183] and [251] of the Family Report). The mother said the child is consulting a paediatrician about severe constipation. Absent any reliable medical evidence or an admission by the mother against her interest on the topic, no adverse finding or inference is currently available.
The paternal grandparents also complain of the children’s lateness to school at earlier points in 2024, but nor is that a consideration which warrants another reversal of the children’s residence on an interlocutory basis.
The paternal grandparents are not free from criticism over their lack of insight, as is evident from their engagement of the children in the conflict. The single expert reported this about the manner in which they admitted interrogating and reproaching the children about the family’s predicament:
245.During further discussions about the children’s behaviour towards the grandfather, he reported that her (sic) had spoken to the children about this which seemed to have an impact on their behaviour. The paternal grandfather stated that he calmly said to the children, “if you hate me, I do not want you to come here, you can stay home” and on another occasion, “if you are going to follow your mum, then don’t come”. The paternal grandfather expressed that, “after this they never said the same things again…and they have been very normal, hugging (me) and asking me to play with them”.
246.From their descriptions of the children’s initial behaviour towards them and the grandfather’s manner of response it was apparent that the grandparents considered the children’s attitudes and behaviour towards the paternal grandfather was influenced by the mother – which the paternal grandparents acknowledged. The grandfather said, “we believe the mother is coaching them to say such nasty things”. At this point the grandmother interjected and gently added, “I talked to [the elder child] (during a supervised visit) and told her I know you lied, I know you love him (the grandfather)…lying is not a good thing…is it true that you do not like us?...[the elder child] said no…so I told her then don’t lie, just say I don’t want to talk about this”. The grandmother also said that she directly asked [the elder child] about why she was saying such negative things towards the grandfather and that [the elder child] said, “mummy told me to”. The grandmother said she responded to the child by “telling her to try and tell the truth”.
(Single Expert Family Report dated 15 October 2024)
Section 60CC(2)(e)
Aside from some veiled concern implied by the single expert about the children’s disrupted primary attachments, there is no debate about the children enjoying loving and warm relationships with the parents and the paternal grandparents.
Section 60CC(2)(f)
It appears as though the father and the paternal grandparents set out in April 2024 to reverse the interim orders made on 5 January 2024 purely on the basis that the sexual abuse allegations made against the paternal grandfather were unsubstantiated by late January 2024. While that might have been enough to justify them trying to discharge the order then made prohibiting the children from spending any time with the paternal grandparents, it hardly seems enough to have justified an application to again reverse the children’s residence. As was observed recently in Bustillo & Bustillo [2024] FedCFamC1F 556:
46.Neither s 65D(2) nor s 65DAAA of the Act purports to place restrictions upon when interim parenting orders may be varied, but litigation should not be conducted by serial interlocutory skirmishes in the hope or expectation that, by process of attrition, one party might eventually submit to the will of the other. Interim hearings should only be conducted as and when necessary to make orders placing the family into a satisfactory holding pattern until the parenting arrangements which will govern their lives can be properly determined at final trial. In Fowler & Northwood, both parties wanted the interim orders varied and so both contended for changes in circumstances to justify another interim hearing, but here the mother asserted there were no changes in circumstances at all and the father could point to nothing but the untested single expert report.
The reversal of the children’s residence sought by the paternal grandparents and the father, both before the registrar in July 2024 and again in this review hearing, necessitated serious findings being made on untested evidence which were not truly available in an interlocutory hearing.
Although the paternal grandparents placed enormous faith in the untested evidence of the single expert, he had the perspicacity to realise the outcome of the proceedings depends upon factual findings based on properly tested evidence. The single expert said in the family report:
340.The totality of information available for this matter suggests that determination of the children’s best interests is a very complex task and would certainly be dependent on the veracity of the parties’ and children’s accounts.
…
358.Given the vastly disparate accounts provided by the parties, and therefore the vastly different consequences and risk of harm faced by the children - judicial determination of the veracity of the parties’ accounts will likely prove important in relation to attaining future parenting orders that serve the children’s best interests.
…
360.Fact-finding in this regard is of course beyond the scope of this report however in this context the court may give consideration to some potential inconsistencies or anomalies that were depicted from the information available.
DISPOSITION
The single expert’s recommendations were posited on alternate bases – whether the Court ultimately finds the mother’s “mental health symptomatology” either does or does not pose a significant risk of harm to the children.
It is impossible to presently say what findings will be made about alleged risks of harm at the final trial but, presently, the evidence does not enable a finding the mother poses a material risk to the children’s physical or emotional safety. Even if it did, the evidence would require findings the paternal grandparents also present risks of harm to the children which prevent them from living with them instead.
That being so, the single expert recommended the children remain living with the mother and spend frequent unsupervised time with the paternal grandparents. I accept the recommendation in relation to the children’s residence, but not in respect of their interaction with the paternal grandparents.
The analysis of the evidence about the allegations made by the children of their sexual and physical abuse by the paternal grandparents, not just to the mother but to third parties, warrants caution. The allegations may prove baseless when thoroughly evaluated, but I am not prepared to reach that conclusion presently.
To ensure the children’s safety is protected, they will spend supervised time with the paternal grandparents on a weekly basis for one day. The frequency and duration of such visits will be enough to ensure their relationships do not fall into disrepair. The requirement for supervision will guard against sexual or physical abuse.
The supervision will likely be costly, but the paternal grandparents did not assert their financial incapacity to afford the cost. They knew the expense would be an issue, because the orders made by the registrar in July 2024 were in similar terms, but abstained from raising the issue in either evidence or submissions.
It will be necessary to discharge the redundant order made in January 2024 prohibiting the children from spending time with the paternal grandparents.
It will also be necessary to discharge certain orders made by the registrar in July 2024 regulating the children’s time with the paternal grandparents (Orders 4, 5, 8 and 11) and allowing the ICL and the parties to re-list the proceedings at their whim (Orders 14, 16 and 18).
The children will remain living with the mother and she will retain parental responsibility for them, as was ordered in January 2024. The father’s interaction with the children will be just as was ordered by the registrar in July 2024.
Any and all outstanding interim parenting applications are otherwise dismissed.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 28 October 2024
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