Lord and Anor and Mendes and Anor
[2018] FCCA 2837
•24 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LORD & ANOR & MENDES & ANOR | [2018] FCCA 2837 |
| Catchwords: FAMILY LAW – Children – serious domestic violence between mother and father – paternal grandparents seek residence of children – mother and grandparents have no relationship to support time with the grandparents – grandparents fail to demonstrate appropriate capacity to parent the children. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65D |
| Cases cited: Donnell v Dovey [2010] FamCAFC 15 |
| First Applicant: | MS LORD |
| Second Applicant | MR LORD |
| First Respondent: | MS MENDES |
| Second Respondent: | MR MENDES |
| File Number: | BRC 9142 of 2017 |
| Judgment of: | Judge Cassidy |
| Hearing dates: | 19 & 20 September 2018 |
| Date of Last Submission: | 20 September 2018 |
| Delivered at: | Bundaberg |
| Delivered on: | 24 October 2018 |
REPRESENTATION
| For the First Applicant: | Self-represented |
| For the Second Applicant: | Self-represented |
| Counsel for the First Respondent | Ms Firth |
| Solicitors for the First Respondent: | Maloy Law |
| For the Second Respondent | Self-represented |
| Counsel for the Independent Children's Lawyer: | Mr Thiele |
| Solicitors for the Independent Children's Lawyer: | McGarvie Family Law Practice |
ORDERS
THE COURT ORDERS ON A FINAL BASIS:
That all previous Orders be discharged.
That the children [W] (“[W]”) born 2003, [X] (“[X]”) born 2009, [Y] (“[Y]”) born 2009 and [Z] (“[Z]”) born 2010, (cumulatively referred to as “the children”), live with the mother.
That the mother exercise sole parental responsibility for the children.
That the Independent Children’s Lawyer be at liberty to provide a copy of the reasons for judgment and the family report to the children’s counsellor.
That the father have no contact except telephone contact with the children, unless otherwise agreed to by the mother in writing.
That the father be at liberty to send cards and gifts to the children.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Lord & Anor & Mendes & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BUNDABERG |
BRC 9142 of 2017
| MS LORD |
First Applicant
And
| MR LORD |
Second Applicant
And
| MS MENDES |
First Respondent
And
| MR MENDES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a matter where I have to determine the living arrangements for four children. [W] (“[W]”) born 2003, [X] (“[X]”) born 2009, [Y] (“[Y]”) born 2009 and [Z] (“[Z]”) born 2010, (collectively “the children”).
The mother, Ms Mendes, wishes the children to live with her. The children’s paternal grandmother, Ms Lord and her husband Mr Lord (collectively “the grandparents”), seek orders that the children live with them.
The father, Mr Mendes, has not participated in this matter to any extent. The father attended on the first day of the hearing but only remained in the back of the Court for a couple of hours and then left and took no further part in the proceedings.
The Independent Children’s Lawyer’s proposal
At the conclusion of the trial the Independent Children’s Lawyer sought only four orders:
“1. That all previous Orders be discharged.
2. That the children [W] (“[W]”) born 2003, [X] (“[X]”) born 2009, [Y] (“[Y]”) born 2009 and [Z] (“[Z]”) born 2010 (cumulatively referred to as “the children”) live with the mother.
3. That the mother exercise sole parental responsibility for the children.
4. That the Independent Children’s Lawyer be at liberty to provide a copy of the reasons for judgment and the family report to the children’s counsellor.”
The mother’s proposal
The mother adopted the Independent Children’s Lawyer’s proposal but sought two further orders:
“1. That the father have no contact except telephone contact with the children, unless otherwise agreed to by the mother in writing.
2. That the father be at liberty to send cards and gifts and spend time with the children by telephone.”
The grandparents’ proposal
The grandparents set out the final orders they sought in a document filed on 6 September 2018. They are seeking orders that the children live with them. Initially they are proposing the children spend time with the mother on the first weekend of each month from 4:00pm Friday to 6:00pm on Sunday. After three months, and subject to an assessment by a registered professional, they propose that the time with the mother be increased to every second weekend.
The grandparents seek sole parental responsibility for the children. Their outline provides for changeover venues, telephone contact and for half of the school holidays to be spent with the mother. The proposal the grandparents provide for the father’s time with the children is limited to weekly telephone contact and a two hour supervised visit at (omitted family contact centre) once per month.
Background
The paternal grandmother (“Ms Lord”), is fifty-nine years old. Her birthday is 1959. The mother’s partner (“Mr Lord”), is fifty-eight years old, and he was born 1960. The father is thirty-nine years of age, his birthday is 1978. The mother’s birthday is 1981 and she is thirty-seven years old.
In around 2004 Ms Lord had four children, the grandchildren of her former partner – now deceased – come to live with her. These children were [C], now twenty-one years old, [D], now nineteen, [E], now seventeen, and [F], now fifteen years old. I will refer to these children as “the [L] children.” In 2010, the Family Court made an Order that the [L] children remain living with Ms Lord. The [L] children’s parents, it appears, were not able to care for them.
Ms Lord also had a further child, called [G] (“[G]”), living with her. I will include [G] among my references to “the [L] children.” [G] came into Ms Lord’s care after his grandfather died. [G]’s grandfather had been Ms Lord’s partner at one time. [G] is also a cousin of the other [L] children. In 2009 [G]’s mother was in prison and his father had little to do with him. It is not clear when he came to live with Ms Lord but he was there in 2009 according to the Department of Child Safety, Youth and Women’s records.
The mother and father met when the mother was seventeen years old. [W], the parents’ oldest child, was born when the mother was twenty-two. The parents married 2009 in a joint marriage ceremony with Mr and Ms Lord. The grandparents allege the wedding date was in fact 2008. The twins, [X] and [Y], were born 2009. [Z], the youngest child, was born in 2010. The parents separated in 2016.
There has been extensive involvement of the Department of Child Safety, Youth and Women (“the Department”), with both the children who are the subject of this application and the five [L] children.
This is a matter where there has also been extensive police involvement with the parties relating to domestic violence. Also, some of the adults involved with these children have had other involvement with the police, and that has resulted in criminal prosecutions.
The children currently live with their mother and do not see the father. The grandparents spend each alternate weekend with the children pursuant to the Orders of Judge Howard made 30 October 2017. It appears from the evidence that [W] does not spend that time with the grandparents.
Parenting arrangements
The parents’ first child [W] was born 2003. The parents remained living together until 2016. However, there were periods of separation when the father was in prison. The first period of imprisonment was for six months commencing 2006. This period of imprisonment was for (offence omitted). The father was sentenced to a term of imprisonment [in] 2006 for (offence omitted). The father was given a parole release date of 2007.
On (date omitted) 2015, the father was sentenced to approximately five and a half months imprisonment for (offences omitted).
The evidence is reasonably clear that [W], the oldest child, and [Z] the youngest child, spent most of their time in the care of the mother. The twins it seems, have spent more time when they were young in the care of the grandparents. The grandparents’ evidence is that the twins were in their care for more than fifty percent of the time.
It appears from the subpoena bundle notes at p.114 that as at 28 November 2013, that:
“[X] primarily resides with his immediate family. He also spends a significant amount of time with his paternal grandparents and their grandchildren.”
The subpoena notes at p.110 also disclose the children were all living with the mother and father in August 2013, when the Department investigated the twins walking one and a half kilometres from the home they lived in with the mother, father and two brothers.
It is apparent from the subpoenaed notes that [X] resided with his grandparents for about six months in 2017. There is also evidence that [Y] was with the grandparents for part of 2017. There have been ongoing disputes between the grandparents and the mother about returning the twins to the mother’s care. The grandparents kept [X] out of school for a period in 2017 to ensure that the mother could not collect him from school and thus return [X] to her care.
The mother, it appears had an on and off relationship with the father prior to the parents’ final separation. The subpoenaed notes disclose, at p.114, that the mother intended to stay with the paternal grandparents until she could find alternate accommodation for her and the children in January 2014. The mother and the children stayed in tents at the maternal grandparent’s home for approximately ten weeks. The same entry in the subpoenaed documents records, at p.115:
“The strength identified in this scenario is the strong involvement of the paternal grandparents, and the positive relationship in particular between the mother and the grandparents.”
The relationship between the mother and the paternal grandparents has subsequently deteriorated and is now, in my view non-existent.
There are extensive domestic violence orders in this matter but from the orders where the mother was the aggrieved, it is clear the orders prevent the father from entering or remaining at the mother’s home.
The children’s education
The children have not had good outcomes at school. This is no doubt because of difficulties they have faced in their home life relating to being exposed to domestic violence, sexual abuse in [W]’s case and the conflict between the parents and the grandparents. All of these issues of risk will be addressed in the judgment.
A summary of each child’s education history and issues, as best can be gathered from the subpoena evidence, is set out here:
[W]
A summary of [W]’s schooling, taken from the subpoenaed records is:
YEAR AGE GRADE SCHOOL/S ATTENDED 2012 8 - 9 3 State School A (Semester 1 and 2)
*Previous school listed as State School B
2013 9 - 10 4 No records 2014 10 - 11 5 No records 2015 11 - 12 6 No records 2016 –
High School12 - 13 7 State High School C (Semester 1 and 2)
*Previous school listed as State High School D
2017 - High School 13 - 14 8 State High School C (Semester 1 and 2)
2018 –
High School14 - 15 9 State High School C (Semester 1 and 2)
The subpoena documents provide evidence of some concerning outcomes and incidents relating to [W]. Notably:
Poor academic performance:
· At p.392 of the records, [W]’s State High School C Semester 2, 2017 report - the latest report in the subpoena documents - shows that [W] is achieving a failing grade (‘E’s and ‘D’s), in all subjects except for technology in which he achieved a ‘C’ grade.
His English teacher’s comments are: “[W] completes very little class work…..”
His Mathematics teacher records, “absence during the course may have been detrimental to [W]’s results…..his effort in class has declined. [W] does very little work in class….”
[W] was recorded as being absent during that semester for thirty-seven and a half days, with five unexplained absences (p.393).
Concerning behaviour in school and at home:
· At p.354, the State High School C records show that on (omitted) 2016, [W] was involved in an altercation with another student in which they fought each other. During that fight [W] “…choked [the other student] over the port racks.”
· At p.361, the State High School C records show that on (omitted) 2017, students at school waited after class with their maths teacher to discuss concerns about [W], including that he was “….threatening to kill everyone and/or kill himself, on a regular basis. They are concerned he may not be kidding…..”
· At p.355, the State High School C records show that on (omitted) 2016, the Music teacher records: “[W] showed me cuts on his forearm and said that his 7 year old brother cut him with a knife. I asked if his parents knew and he said that his dad is in jail, but his mum and her boyfriend knew. He said mum’s boyfriend might be going to jail too, as he let [W] shoot a gun underage….”
· At p.354, the State High School C records show that on (omitted) 2016, [W] fought with another student at his school and admitted to a teacher that he has anger issues.
[Y]
[Y]’s schooling summary from the subpoenaed records is:
YEAR AGE GRADE SCHOOL/S ATTENDED 2014 5 Likely Prep State School B (Semester 2) 2015 6 1 State School B (Semester 1 and 2) 2016 7 2 State School E (Semester 1 and 2)
2017 8 3 State School A (Semester 1)
State School E (Semester 1 and 2);
2018 9 4 State School E (Semester 1)
*[Y] appears to still be enrolled in State School B at this point, pp. 336 - 337
The subpoenaed documents relating to [Y] similarly have evidence of poor academic progress, poor behaviour and of [Y] being exposed to adult issues.
Struggles at school:
· At p. 330, the State School E Semester 1, 2017 report records [Y]’s progress in Grade 3. [Y]’s teacher, Ms N, notes that in English [Y], “demonstrates a very limited understanding of grammar…” in mathematics [Y] “demonstrates a very limited level of proficiency…” This is reflected in the grades [Y] achieved that semester, being mostly ‘E’s and ‘D’s, with one ‘B’ grade in health and physical education.
· [Y]’s Semester 2 report for 2017 shows a similar range of grades, happily with some improvement, being mostly ‘D’s and two ‘C’s (at p. 333). However, that student report also notes that in Semester 2, [Y] was absent for twenty-three and a half days and had eight unexplained absences.
Poor behaviour:
· At p. 345 on 30 May 2017, some confidential school chaplain notes record that [Y] and another student had a fight, where they threw sand at each other and [Y] punched the other student.
Exposure to adult issues:
· At p.346, on 31 October 2017, further confidential chaplain notes record that [Y] was sent to the sick bay. [Y] then came to the chaplain and the notes record:
“[Y] talked about a fight that her Dad and step-dad had. She talked about how they punched each other and used a stick to hit etc. [Y] talked about her Mum going away to court. [Y] said that now the kids are going to stay with Mum from Monday to Friday and then they go to [Ms Lord’s] for the weekend. [Y] said she doesn’t want to go to [Ms Lord] because she is worried that Nan will break the court order and not return them home again. [Y] also said that Child Safety will be deciding who they go live with...”
[X]
[X] has the most disrupted schooling attendances of the children. The records indicate that [X] has had twelve enrolments across at least three schools. [X]’s enrolments and schooling can be summarised as follows:
YEAR AGE GRADE SCHOOL/S ATTENDED 2014 5 Likely Prep State School B (Semester 1 and 2);
*Potentially also enrolled in State School F (unknown timeframe, see p.231)
2015 6 1 State School B (Semester 1 and 2);
State School A (from at least 16 October 2015, Semester 2)
2016 7 2 State School B (until at least 9 May 2016 Semester 1);
State School A (Semester 1);
State School E (Semester 2)
2017 8 3 State School A (Semester 1 and 2);
State School E (Semester 1 and 2);
2018 9 4 State School E (Semester 1) There are entries in the subpoenaed documents that indicate serious behavioural problems with [X]. These include:
· At p.238, on 15 February 2017, the State School A notes record that [X] gets, “angrier and angrier…picked up a chair and threw it so hard that it hit the light fixture, breaking it. He then left the classroom…”
· At p. 249 on (omitted) 2014, the State School B notes record that [X] “tried to stab another student with pencil (sic) because he didn’t want the other student to help him pack up activity…”
· At p. 260 on (omitted) 2018, the State School E notes record that [X] “chose not to follow the cross class directions and became defiant. He then sketched a drawing that said – “I will kill you.” [X] was suspended for three days because of that incident.
[Z]
A summary of the schools attended by [Z] is as follows:
YEAR AGE GRADE SCHOOL/S ATTENDED 2016 5-6 Prep State School A (Semester 1);
State School E (Semester 2)
*State School A report lists previous school as State School B, p. 286
2017 6-7 1 State School E (Semester 1 and 2) 2018 7-8 2 State School E (Semester 1 and 2)
*[Z] appears to still be enrolled in State School A, p.289
According to the subpoenaed documents, [Z] has had similar schooling and behavioural difficulties to his brothers and sister:
Running away from school / stealing:
· At p.305, the State School E records show that on (omitted) 2018, [Z] “left the school grounds before school and ran across (omitted) Avenue. Cars had to slow down to avoid him … Police also visited the school and spoke to [Z] about the dangers of his behaviour.” [Z] was suspended for three because of this incident.
· At p.304, the State School E records indicate that on (omitted) 2018, [Z] “threw his shoe at [a] student, hitting him in the face…and left the school grounds.” When teachers attempted to follow [Z] to call him back to school he refused to follow their directions and ran to the (omitted) shopping centre. [Z] then “ran through the carpark in a dangerous manner. He then ran into the (omitted) shop… It was reported he had taken a chocolate and placed it in his pocket…” [Z] was suspended for ten days due to this incident.
Struggling in school:
· At p. 313 the State School E Semester 2, 2017, student report shows that in this semester [Z] was absent for thirty-four and a half days with two unexplained absences. [Z]’s teacher comments: “… [[Z]’s] absences from school have affected his ability to keep up with the demands of the curriculum… I believe his results do not reflect his full potential…”
The grandparents’ parenting capacity
The father, Mr Mendes
Ms Lord only has one biological child, the father in these proceedings. The father told the family report writer at paragraph 48 of the report of Mr W filed 9 July 2018:
“48. He noted that he finished primary school in NSW and grade nine at State High School G in Queensland. He noted that he was working by the time he left school, as his mother had sent him to live with his father, “I was too much to handle apparently.”
The father was thirteen years old when he left the home of his mother.
The [L] children
Ms Lord has had the care of the four [L] children, [C], [D], [E] and [F] since 2005. She also had the care of the [L] children’s cousin, [G].
[G]
[G] came into Ms Lord’s care because his mother was in jail. There is a note in the subpoenaed documents that [G] came into Ms Lord’s care after his own grandfather died. Mr and Ms Lord left [G] at the Department on 23 June 2009. The observations of the child support officer were:
“[G] was observed to be crying when Mr Lord and Ms Lord left him at the Department.
[G] presents as a very quiet young man.
[G] only had the clothes on his back.”
The grandparents made criticisms of [G] sneaking out, drinking, doing drugs and having unprotected sex. Ms Lord said to the case officer:
“That she cannot continue to care for him as he does not want to live with her and she has 4 younger children to look after and keep them safe.
That [G] has no other relatives that would be able to care for him. Aunty S is not a suitable person and she lives in Location A, Ms N ([G]’s sister) lives in Location B but there are no contact details for her.
That she loves [G] and is finding it difficult to kick him out of the family home but feels that she has no other choice.”
There was an incident on (omitted) 2009, involving the father in these proceedings that is described in the subpoenaed documents:
“[G] had broken out of the caravan and went to his friend’s [J]’s and told them that he had been abused. [G] was dropped home by [M]’s mother.
[G] came through the back door.
Mr Mendes said to [G] “Why are you telling people you have been abused” Mr Mendes said to [G] “I will show you some abuse”, then duct taped his hands behind his back and put him in the car and dropped him up the road 500m.”
Mr Lord went to collect [G] from the side of the road approximately 5-10 minutes later.
Ms Lord indicated that [G] was laughing through the incident so she did not feel that he was affected by Mr Mendes’s actions”
I consider allowing a child to be treated this way by the father in these proceedings when the grandparents were in the position of parenting the child [G], indicates there is a problem with the grandparents’ parenting capacity. It is also troubling that they could not prevent the child from drinking, doing drugs and having unprotected sex.
[C]
[C] is twenty-one years old, she was born 1997. She is currently in prison in Location A. [C] has previously been in a sexual relationship with the father in these proceedings. She has a significant history of drug abuse, including an addiction to ice.
[C] came into the grandparents’ care when she was approximately eight years old. [C] had made allegations that her mother sexually interfered with her. [C]’s mother (Ms P), served a period of imprisonment but she was released on appeal. The trial arose because of [C]’s allegations that her mother sexually abused her.
[C] was reported to the Department as having suicidal ideation and that she had been cutting herself. The child disclosed to the Department that she attempted to kill herself in 2013.
The Department records note that she was pushed by the father in these proceedings in 2013 and a domestic violence order was obtained with her as the aggrieved. [C], it appears to be conceded by Ms Lord, was in a sexual relationship with the father in these proceedings when she was a child. It is certainly the case she was in a sexual relationship with the father as an adult.
[C]’s self-harm, issues with drugs and alcohol as well as the appropriateness of the relationship [C] had with the father in these proceedings, raise serious questions about the capacity of the grandparents to parent this child.
[D]
[D] was born 1999. This child left the home of the grandparents by September 2014, but otherwise there are no child safety records of relevance. [D], it seems was “kicked out of Ms Lord’s house” (p.155).
[E]
[E] was born 2000. There was a serious incident with [E] attempting to rape [W], when [W] was ten years old. The Department records note:
“Ms Lord is the paternal grandmother and long term guardian of [C], [D], [F] and [E]. [C] and [D] no longer reside with Ms Lord and her partner Mr Lord.
[E] was observed yesterday with Ms Lord’s 10 year old grandson. [E] had the boy’s arms held behind his back, the boys (sic) pants were lowered, [E] had his pants down and he was attempting to anally rape the boy. [E]’s sister walked in on the boys and intervened.
Ms Lord and her partner Mr Lord advised their adult child to remove the grandchildren from the home to ensure their safety. The children returned to their family home.
Ms Lord and Mr Lord took [E] to the police station where he admitted to the allegations.
The police have ordered [E] to attend a YJ conference in relation to the matter. The police advised Ms Lord that [E] was their responsibility and to take him home.
Ms Lord and Mr Lord have their four grandchildren stay at their residence on a weekly basis and sometimes more over the school holidays. They feel that they can no longer have the grandchildren stay over as they are unsafe with [E] around.
[E] has been receiving counselling due to an incident which occurred at school where he was brandishing knives.
[E] has been to mental health previously (sic).
[E] has been referred to a paediatrician for a mental health assessment.
There have been allegations of sexual abuse by [E]’s mother. [E]’s mother has spent time incarcerated for such offence/s
Ms Lord and Mr Lord are at the end of their tether and need some sort of respite from [E].
There are no family members or friends willing to take care of [E], even for a short period of time. [E] does not have the trust of any other adults.”
[E] was interviewed and is recorded as saying:
“I’m in the tent because they don’t want me here.
Nan put me in the tent
Nan and Mr Lord want me to go someplace
…
Did you try to put your penis in [W]’s bottom? [E] did not answer, Yes, said very softly
Did you put your penis in his bottom? No
You tried to? [E] did not answer, then softly responded, Yes”
The grandfather and grandmother were interviewed and are recorded as saying:
“Mr Lord – This is stressful having [E] in this house because there is a fucking rapist in this house!
Ms Lord – [E] can’t say he is sorry, this upsets us, I have told him daily that we love him and have loved him and nurtured him but he can’t say he’s sorry.
I am not going to give up [F], she’s done nothing wrong
Mr Lord – What is the solution for having a rapist in the house, child safety is supposed to help parents when they are desperate, we are desperate.”
The maternal grandmother “Ms H,” agreed to take [E] so he would not go into foster care because the grandparents were not prepared to continue to care for [E].
The events with [W] and [E] raise serious questions about the grandparents’ capacity to parent young children. They have not set boundaries for [E]’s behaviour, and that failure allowed this sexual assault of [W] to occur. The grandparents then rejected [E] and refused to allow him to return to their care.
[F]
[F] was born 2002. The grandmother’s evidence was that [F] was only two years old when she came into the grandmother’s care. [F] is now sixteen years old. She has left the grandmother’s home and is living with the father in this matter. [F] is in a sexual relationship with the father. [F] said to the family report writer:
“86….She noted that she left because of the Lords’ behaviour and that she was tired of getting yelled at for doing things that she shouldn’t have to. She noted that she had to clean up after everybody whilst she was trying to do school and work part time. She also had to do the household chores as well, and was never given any monetary assistance by her foster parents.
87. [F] confirmed that both her foster parents drink a lot of alcohol. “They buy a lot of cheap stuff. It was all in the fridge; a lot more before I left”.
…
88. When asked if Ms Lord ever hit the children she noted that, “she would slap them across the head if they did not do what they were told.” She noted that [X] and [Z] do not sleep in their bedrooms, “They end up in Ms Lord’s room playing the I-Pad till two in the morning and sometimes later.”
I note that Mr and Ms Lord have tendered Carbohydrate-Deficient Transferring (CDT), tests into evidence that did not show excessive consumption of alcohol during the tests periods.
The grandparents’ parenting capacity is in question in relation to [F], given they have been her primary carers almost all of her life. They were not able to parent her to prevent her becoming addicted to drugs or ensure that she did not participate in under age sexual relationships. Ms Lord’s evidence suggested that these behaviours were the fault of [F] alone and did not reflect on her parenting capacity.
Domestic violence
This is a matter where there has been very serious domestic violence. The father’s history of domestic violence is absolutely disgraceful. The father has served a term of imprisonment for breaches of domestic violence orders, where the mother was the aggrieved.
Ms Lord, the grandmother, sought a private domestic violence order against the father because of her concern for [X] and [F]. The application was dated 12 July 2017, a period of time when [X] was in the grandparents’ care. The application sets out the reason the order is sought at paragraph 4:
“I request a temporary Protection Order to immediately protect [X] from being ripped away from school or any other place…. also needs immediate protection from being abused for her choice to testify against him. Mr Mendes manipulates her. We have been threatened many times by Mr Mendes and feel that the threats are immediate and real… being a 14 year old child, needs also to be kept safe from Mr Mendes approaching her, trying to gleen (sic) information or to being subjected to abuse for not being on his side.”
It seems the person the grandmother is referring to in this application is [F].
The father’s criminal history reveals a lengthy history of criminal offending with a four, three, two and one month term of imprisonment imposed for breaches of domestic violence orders to be served concurrently. These were all breaches that involved the mother in these proceedings as the aggrieved.
The mother’s parenting capacity
The grandparents raise concerns about the mother’s parenting capacity. There is no doubt that when the twins were very young they were found one and a half kilometres from their home with no clothes on. The Department reviewed the incident and left the children in the care of the mother and father. This occurred in 2013 and in the same year, [Z], who was then two years old, was found at a neighbour’s residence, having wandered away from home.
Ms Lord gave evidence that [X]’s infected fracture of his arm was caused by the mother’s negligence. The mother’s evidence is the nature of the fracture was what caused the infection in the bone. [X] fell off a quad bike while riding it at the mother’s property. The subpoenaed documents reveal the concern was with the father attempting to remove [X] from the hospital, not any negligence of the mother.
The medical notes describe the condition [X] had as septic arthritis or cellulitis/wound infection. There are no notes that suggest negligence in the mother’s care. The concern raised in the notes is that the father allegedly takes amphetamines and has “alcohol abuse”. The note talks about “grandparents concerned about stability of household”.
The hospital notes record the mother and father had separated and the mother and children are going to stay with the grandparents. There is no concern raised at the time about the mother’s failure to care for [X]’s fracture. The family report writer at paragraph 129 states:
“129. I could see no issues with Ms Mendes providing for the needs of the children, including emotional and intellectual needs, which has also been confirmed by Mr Mendes in his interview.”
I am concerned about the schooling of these children in the mother’s care but the expert Mr W indicated once the mother is free of this litigation she will be free to better parent these children, without the distraction of these proceedings.
The grandparents also raised concerns about the mother’s previous partner. The mother, I accept, made a poor choice in her decision to form a relationship with Mr U. The fact [W] saw Mr U attempting suicide by hanging and was responsible for cutting the rope to lower Mr U to the ground is very serious. Also Mr U’s serious criminal offending in relation to “dishonest application of property” is a concern. I note, however the mother is no longer in a relationship with Mr U.
The father’s parenting capacity
I have very grave concerns about the father’s capacity to parent these children because of:
a)His very serious history of domestic violence;
b)His extensive criminal history;
c)His use of ice and marijuana; and
d)His sexual relationships with [C] and [F] in circumstances where they were living in the grandparents’ household in what should have been a sister/brother type relationship.
Legal principles
The relevant principles are set out in the Family Law Act 1975 (Cth) (“the Act”). I accept that the best interests of the children is my paramount consideration. I note that not all of the section 60CC(2) and section 60CC(3) factors apply to grandparents but the authorities of Mulvany v Lane (2009) FamCAFC 76 and Donnell v Dovey [2010] FamCAFC 15 support the proposition that section 60CC(3)(m) allows me to determine the best interests of these children, as that concept applies in relation to grandparents.
The primary considerations
Turning firstly to the application of the primary considerations set out under ss.60CC(2) and (2A):
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
In my view it is important that the children have a meaningful relationship with their mother. It is clear from the family report that the children have that relationship with their mother.
The father’s drug addiction, domestic violence and inappropriate sexual relations with the grandmother’s other children [C] and [F], supports a conclusion that it is not important at this stage that the children have a meaningful relationship with the father.
These children are at risk of harm if they are to have any time with their father because of the risks outlined in these reasons.
The grandparents have had the care of the five [L] children, as discussed above. These children have all had serious problems relating to drugs and alcohol and / or inappropriate sexual behaviour. The parenting capacity of the grandparents as demonstrated with the [L] children raises the question of these children being at risk in the grandparents’ primary care. The grandmother, in her evidence did not accept any responsibility for any of the problems the [L] children faced while in her care.
The mother has had problems with drugs in the past that may represent a problem of risk for these children if she was to resort to drug use in the future. I also accept that while the mother was with the children’s father there was a very real risk the children would have been exposed to domestic violence. These two risks seem to be of less significance now than they have been in the past.
The children’s history of school attendance has been poor but I accept once these proceedings are finalised the mother will be more available to concentrate on ensuring the children attend school. The mother has also engaged with the children’s schools to attempt to formulate a programme of attendance that suits each child.
Additional considerations
In this matter I consider the additional considerations that are relevant to be as follows:
The children’s views
This consideration is set out in s.60CC(3)(a) as follows:
“(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;”
[W]
[W] is not spending time with the grandparents. He told the family report writer at paragraph 72:
“72. He noted that the grandparents “Can be really really manipulating. They used to say to me that mum was really bad and stuff.” He noted that [F], [C], [E] and [D], “Left because of how bad they got treated. [C] and [D] left because of the way they were treated by nana and [E] had to leave because of the rape.” He noted that, “[F] is only there because she can’t get away”.
[Z] (“[Z]”)
[Z] told the family report writer at paragraph 74 of the report:
“74. [Z] noted that he does not like going to Nan’s as [X] treats him like “crap,” and nothing gets done about it. He noted that, “Nan just sits on her computer all day.” He informed me that he does not want to go to the paternal grandmothers (sic). “I really hate it. I never get to do things.”
[Y]
[Y] spoke to the report writer who records:
“77. When asked about going to the paternal grandparents, she noted that she did not want them to know what she said, as the last time they told Ms P (report writer), she wrote a letter to the grandmother and they got into trouble. “We got wacked across the head for it.”
78. She noted that she does not like going to “nanas, she treats [X] the best and gets up [Z].” She noted that the paternal grandmother has hit her across the head, “a couple of times,” and that “nana tells lies about mummy.”
79. She noted that when her grandmother tells lies about her mother she cries, but they do not see her, as she is scared if she is seen. She noted that their home is “yucky, I get knits and have to get rid of them when I get home.”
80. “I don’t like it. I don’t want to go.” She noted that she wanted to tell someone, but was scared of doing so.”
[X]
[X] enjoys going to his grandparents’ home. The family report records:
“82. [X] noted that he usually enjoys going to grandmas (sic), but does not like going to, “the salty water pool.” He noted that he has been told by Nan that dad is not going to be there this week. He noted that he and his brother and sister fight a lot. “They fight at home a lot, but not a lot at nans.” When asked about the grandparents talking about mum, he noted, “not much.”
83. When briefly interviewed at the paternal grandparent’s residence that evening, both [Z] and [Y] noted that they wanted to go home. [X] when asked, informed me that he would go with his sister and brother if they went home. I did not question the children any further given the proximity of the paternal grandparents.”
The children’s relationship with significant persons
The family report confirms there are no issues in relation to the children’s relationship with their mother. This is borne out by the recorded interviews with the children.
The children’s relationship with their father is more complicated. The family report records they would like a relationship with their father, however, because of the father’s drug dependence, extreme domestic violence and inappropriate and illegal sexual relationship with [C] and [F], I am not satisfied he should have a relationship with his children at this time.
The family report writer recommends the relationship should be supervised, however the nearest contact centre is a one and a half hour drive from Town A. In these circumstances I do not consider it is in the children’s best interests to spend any time with the father, face to face.
The children’s relationship with the grandparents is discussed in the family report. The report writer concludes:
“111. Regarding the relationship with the children and the paternal grandparents, from my interviews and observations this relationship has been damaged to the point that these children need therapy, and further investigation needs to occur in this matter regarding this contact.”
This is consistent with evidence from [Z]’s psychologist, Ms D who wrote:
“I would recommend that [Z] be allowed to not attend access visits until the court case in July.”
The conclusion is also understandable in light of [W]’s experiences as noted in the family report:
“114. [W]’s resistance to having contact with the paternal grandparents is understandable given that all parties have confirmed that he was violently assaulted by [E] whilst they were both in the care of the paternal grandparents. He presented as an adolescent young man who was trying to deal with issues regarding not only [E], but his father who also assaulted him.”
The parenting and the discharge of parenting responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider, under this heading, the following paragraphs of s.60CC(3):
“(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
…
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;”
I have discussed the parenting capacity of all of the parties in this matter from paragraph 24 onwards.
Effect of any changes in the children’s circumstances
Section 60CC(3)(d) of the Act requires the Court to consider:
“(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”
The children are residing primarily with their mother. The three younger children are spending alternate weekend time with their grandparents. The change of residence of all the children to live with their grandparents would be very disruptive and I do not consider that [W] would go given his age and his views.
The effect of no time with the grandparents would not be a significant change for [W].
It would be in [Z]’s best interest to have no time with the grandparents, according to his therapist. The effect on the twins of no time would be likely to upset [X] however, with counselling this should assist the child to cope.
Parental responsibility
Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply, however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
The domestic violence in this matter is such that there would be no justification for an order for equal shared parental responsibility between the mother and the father.
The prospect of shared parental responsibility between the mother and the grandparents is that it would fail because the relationship that once existed between the mother and the grandparents has completely broken down.
The consequence of the decision that I should not contemplate an order for equal shared parental responsibility, is that I do not need to consider equal time or substantial time as between the parents.
Conclusion
I am satisfied that the mother’s proposal, which incorporates the proposal submitted by the Independent Children’s Lawyer, is in the children’s best interests for the following reasons:
a)The mother has been primarily responsible for the care of [W] and [Z]. It is clear on the evidence that the twins were cared for by the grandparents for periods of time but nonetheless the mother has also been their primary carer.
b)The father should have only the limited contact proposed by the mother, which is no contact other than telephone contact unless agreed in writing and also be at liberty to send the children cards and gifts. The father did not participate in the proceedings and given the findings made about him it is not appropriate for him to spend other than supervised time with the children. There is no available contact centre in Town A to facilitate that.
c)The grandparents have failed to effectively parent the [L] children, so in my view it would not be in these children’s best interests to go into the primary care of the grandparents.
d)I do not intend to order any time with the grandparents because of their failure to parent the [L] children, the views expressed by these children and the significant conflict that exists between the mother and the grandparents.
e)This is a course that was supported by the family report writer in the evidence of the trial.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 24 October 2018
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