Lorne and Emery and Ors

FAMILY COURT OF AUSTRALIA

LORNE & EMERY AND ORS

[2016] FamCA 747

FAMILY LAW – CHILDREN – Where the mother’s relationships are marked by violence, drug use and injury – Where there is ongoing domestic violence in the relationship – Where the children live with the grandparents – Where majority of the care is provided by the grandparents – Where the children’s fathers are parties to the proceedings but did not participate in the final hearing – Where the capacity of the mother is an issue – Where the grandparents remove the children from the mother’s care – Where the children are separated for a period – Where the mother returns the child to the grandparents – Where the Department of Family and Community Services arranges supervised contact for the mother – Where the mother does not attend supervised contact – Where the children indicate they are happy living with the grandparents – Where the children’s views are a significant matter – Where the mother has limited insight – Where the mother is hostile towards the grandparents – Where the mother is unable to recognise her impact on the children – Where the mother’s new partner has mental health issues – Where the mother’s partner has expressed suicidal ideation – Where the children are frightened of the partner’s conduct – Where the partner expresses a willingness to co-operate with a restraining order – Where the grandparents have a history of conflict – Where the grandparents encourage the mother to have contact with the children – Where the grandparents have full financial responsibility for the children – Ordered that the grandparents have sole parental responsibility, shared between themselves – Ordered that the mother is restrained from bringing the children into contact with her partner – Ordered that the Independent Children’s Lawyer explain the orders

Family Law Act 1975 (Cth), ss 60CC, 64B
APPLICANT:	Ms Lorne

FIRST RESPONDENTS:	Mr and Mrs Emery
SECOND RESPONDENT:	Mr Paulis
THIRD RESPONDENT:	Mr Delaney

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

FILE NUMBER:

NCC

3267

2014

DATE DELIVERED:

6 September 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

15 – 18 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE FIRST RESPONDENTS:

Ms O’Rourke

SOLICITOR FOR THE FIRST RESPONDENTS:	Legal Aid NSW Gosford Family Law
SECOND RESPONDENT:	No Appearance
THIRD RESPONDENT:	No Appearance
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

Orders

Residence

That with the exception of Order 1; made on 9 December 2015 with the consent of the mother, the maternal grandparents and Mr Paulis (N’s father):
“BY CONSENT I make an Order that [N] born … 2003 and [V] born … 2008 live with the maternal grandparents [Mrs Emery] and [Mr Emery].”
all prior parenting Orders in relation to the said children are discharged.

Parental Responsibility

That the maternal grandparents have sole parental responsibility, shared with each other, for the children.
The maternal grandparents shall take the following steps when a decision relating to the long term care and welfare of the children arises including, but not limited to:
-which schools the children shall attend;
-elective surgery; specialist medical and orthodontic treatment; and therapeutic intervention.
(a)Advise the mother in writing (including but not limited to Facebook/email/text) of the issue requiring decision and invite her views within a nominated period;
(b)Take into account any views of the mother if expressed in a timely way;
(c) Advise the mother in writing of the decision taken.

Spending Time

That the children spend time with the mother as agreed between the maternal grandparents and the mother or, failing agreement, as follows:
(a)Commencing in September 2016 in each calendar month for two periods of time (2 hours) supervised and, unless otherwise agreed, one such period of time on a weekend day and the other period of time on a weekday afternoon.
(b)For the purposes of spending time the supervisor shall be Ms P, or on any occasion she is unavailable, such supervisor as is:
(i)Nominated by the maternal grandparents; or
(ii)Nominated by the mother and agreed to by the maternal grandparents; or
(iii)In the event that no agreed supervisor was available then by a commercial supervision service with costs of supervision to be shared as to one half by the maternal grandparents and one half by the mother.
In respect of Order 4, the order for supervised time operates in respect of each child as follows:
(a)For N until age 14 and thereafter N may attend when V spends time with her mother if N wishes to do so;
(b)For V until age 14.

Information

That the maternal grandparents, or either of them, shall advise the mother as soon as practicable of:
(a)       Serious illness;
(b)       Accident and medical emergency;
(c)       Hospitalisation;
involving the children or either of them.

Communication between children and mother

That the maternal grandparents shall permit, encourage but not compel the children, or either of them, to communicate with the mother by telephone, text, Skype, letter/card.
That the mother may provide to the children cards and gifts for their birthdays and Christmas.
That in the event that the children wish to send letters/cards/gifts to the mother, the maternal grandparents will permit and facilitate that communication.

Restraints

That each of the parties is restrained from speaking critically of the other party and members of that party’s household in the presence or hearing of the children and further shall use his/her best efforts to ensure third parties are similarly restrained.
The mother is restrained from bringing the children into contact with her husband Mr L.
The mother is restrained from bringing third parties to supervised periods of time for the children unless with the prior written consent of the maternal grandparents.

Independent Children’s Lawyer

That the Independent Children’s Lawyer provide a copy of these Orders to the principal of A School and of B School.
Independent Children’s Lawyer shall inform the children of the orders and to that end, the maternal grandparents make the children available for a meeting with the Independent Children’s Lawyer as soon as practicable.

THE COURT NOTES THAT

(A)Both children spend time with the Second Respondent Mr Paulis on average one night each fortnight.
(B)The child V spends time with the Third Respondent Mr Delaney one afternoon each week supervised by the maternal grandparents.
(C)The maternal grandparents have a present intention to continue those arrangements.
(D)The maternal grandparents have a present intention to keep the fathers of each of the girls advised of matters involving the health, welfare and education of their respective daughters.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC3267/2014

Ms Lorne

Applicant

And

Mr Emery and Mrs Emery

First Respondent

And

Mr Paulis
Second Respondent

And

Mr Delaney
Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders in respect of two girls, N aged 13 and V aged eight.
The applicant, aged 47, is the mother of both children. She lives with her husband of four years, Mr L, aged 50.
The first respondents are the maternal grandparents, aged in their sixties. They have been married for 47 years. Both children live with them.
The second respondent, Mr Paulis, is the father of the first subject child. He also has a parental relationship with the second subject child who did not learn that Mr Paulis was not her biological father until she was about school age.
The third respondent, Mr Delaney, is the father of the second subject child. That fact was recently confirmed by DNA testing.
Despite the two fathers being respondents to the proceedings neither participated in the final hearing. Both were interviewed for the Family Report.[1] Each father supports both his child and the other remaining in the care of the maternal grandparents. Each father reported to the Family Consultant that he was content to spend time with his own daughter and in the case of Mr Paulis, both girls, by arrangement with the maternal grandparents.
[1] Family Report, Mr Paulis pars 127 – 137, Mr Delaney pars 138-150

History of Events

The mother married young and was divorced by 23. There were no children of that marriage.
The maternal grandparents referred in their affidavits to several subsequent relationships for the mother marked by violence, drug use and injury to the mother. She sometimes returned to live with her parents between relationships.
The mother met Mr Paulis in Sydney in or around 2000.
Their child N was born about three years later. The maternal grandmother stayed with the mother in Sydney for the first few weeks of the child’s life then returned to her own home and employment in Newcastle.
Soon after, the mother, Mr Paulis and the child moved to Newcastle to live with the maternal grandparents.
In 2004 the mother bought a house nearby the maternal grandparents and she and Mr Paulis moved to live there. However they both worked in Sydney and the child was with her grandparents five days per week.
In late 2004 the relationship between the mother and Mr Paulis, described by the mother and the maternal grandparents as affected by physical and verbal abuse, ended. Mr Paulis was apparently convicted of an assault on the mother.
The mother and Mr Paulis have maintained a reasonably communicative relationship as parents.
In or around 2005 the mother began an “on again-off again” relationship with her next door neighbour Mr Delaney.[2] This too was a violent relationship. The child N spent seven days and most nights with her maternal grandparents.
[2] Affidavit of the mother filed 15/08/2016, Annexure D, par 5
In November 2005 the maternal grandparents travelled overseas with their adult son and took N with them. The child has lived mostly with her maternal grandparents since that time.
In August 2008 the second subject child V was born to the mother and Mr Delaney. The child has subsequently been diagnosed with Foetal Alcohol Syndrome at the lower end of the range. She has a poor working memory associated with learning difficulties.
The relationship between the mother and Mr Delaney ended in late 2009.
The mother (in 2012) received compensation for an injury to her shoulder said to have been caused during a violent assault on her by Mr Delaney in May 2009. Mr Delaney reported to the Family Consultant that the mother probably injured herself when she smashed windows in his house in order to enter it. He was not charged by police with an offence. There is insufficient evidence to determine what happened on that occasion.
In August 2010 the maternal grandparents were contacted by the Department of Family and Community Services (“DFACS”). Concerns were expressed about drug and alcohol risk issues in the mother’s household. The mother had recently been in hospital after an assault.
Subsequently DFACS arranged for the child V to go to Day Care five days per week. The maternal grandmother picked her up, took her to day care, collected her and returned her to the mother each day. The child stayed with the maternal grandparents most weekends.
In 2011 V started preschool.
In June 2012 the mother met her current husband Mr L. He moved in to live with her.
Mr L has two children who became members of the household, Y who was then aged 14 and Z 11. The child N was nine, V was almost four.
Two months later in August 2012 they were married.
The night before the wedding N acquired a burn on her wrist. V reported to her grandparents that N got the burn from a cigarette in Mr L’s hand when he dragged her back to bed. Mr L denied any such incident. N has declined to discuss the injury.
What is certain is there was drinking and loud music in the house; V was scared and N was protective of her.
Mr L refers in his affidavit to the struggle involved in accommodating six people in a three bedroom house, taking children to four different schools and running a business. This is surely an understatement. The two sets of children were strangers to each other and the relationship between their respective parents was two months old.
The child V developed enuresis and was taken to a psychologist by the maternal grandparents.
Late in August 2012 the maternal grandmother made a decision to remove the children from the household of the mother. She attended the home. N got into the car readily. There was a physical tussle over V who was removed from her car seat by the mother. V remained living with the mother.
On 25 December 2012 the police were called to the home of the mother due to a complaint about the level of verbal argument. The mother and Mr L were assessed as moderately affected by alcohol.
In February 2013 Mr L had treatment for a hand injury after he punched a computer.
On 9 September 2013 police were called to the mother’s home. Mr L was assessed as moderately affected by alcohol. He complained about conduct of the neighbours, the mother contradicted his story and Mr L became aggressive towards police
In December 2013 after a trip overseas for N with the maternal grandparents, the mother took V for a visit to the home of her grandparents. She has lived there since.
On 19 March 2014 N reported to a school counsellor that V had told her that the mother and Mr L had held knives at each other and that Mr L had grabbed the wheel of the car when the mother was driving causing the car to crash
For about four weeks in March and April 2014 the children lived with their mother after the mother collected them from school and declined to allow them to return to the maternal grandparents.
During that time an ambulance attended the mother’s home because Mr L was threatening to kill himself due to family issues. He was observed to be intoxicated and aggressive.
On 11 April 2014 officers of DFACS attended the mother’s home. The child N was interviewed and expressed her worries about the mother drinking and playing loud music so she and V couldn’t sleep. She said her mother was trying to “make her not love her grandparents”. DFACS removed the children from the care of the mother
The mother signed a Safety Plan which referred to Family Violence in her home. The mother denies there was any.
DFACS arranged supervised visits for the mother with the children, many of which did not take place.
On 26 November 2014 DFACS effectively ceased involvement.[3] It is safe to infer that DFACS considered that the children were safe in the care of the maternal grandparents.
[3] Affidavit of the mother filed 15/08/2016, Annexure C

History of Litigation

On 12 December 2014 the mother filed an Initiating Application in the Federal Circuit Court seeking orders that she have sole parental responsibility for the children and that they live with her.
On 28 January 2015 the maternal grandparents filed a Response seeking orders for sole parental responsibility (with an obligation to keep all three parents informed of certain decisions and events) and for the children to live with them.
On 13 March 2015 the parties attended a Child Inclusive Conference with a Family Consultant. The Memorandum of that conference identified the issues in dispute as follows:

44.1 Where the children should primarily live;
44.2How much time the children should spend with the non-resident party/parties;

44.3 Whether the children are at risk in either household.

The risk factors identified by the counter allegations of the mother and the maternal grandparents were as follows:

45.1By the mother against the maternal grandparents:
45.1.1Alignment;
45.1.2Family violence between the maternal grandparents, witnessed by the mother as a child;
45.1.3Mental health issues, particularly for the maternal grandfather;
45.1.4Prescription drug misuse;
45.1.5Compromised parenting capacity.

45.2By the maternal grandparents against the mother:
45.2.1Personality dysfunction;
45.2.2Abusive conduct;
45.2.3Inability and/or unwillingness to care for her children;
45.2.4Involvement of the children in adult issues;
45.2.5Exposure to family violence in subsequent relationships;
45.2.6Alcohol abuse.

At the time of the Child Inclusive Conference both children indicated that they felt very happy living with the maternal grandparents. They referred to having provided information to DFACS about events in the mother’s household which affected them, “Both children were worried at the prospect that they may have to live with the mother”.[4] Their main fear about spending time with their mother was that she might not return them afterwards.
[4] CIC Memorandum dated 13/03/2015, page 2
The Family Consultant made various recommendations including referral of the proceedings to this Court and that the children stay living with the maternal grandparents and have supervised time with their mother.
On 17 March 2015 interim Orders were made by consent consistent with the recommendations of the Memorandum.
On 30 April 2015 a Family Report was ordered and the matter was transferred to this Court.
On 23 September 2015 the Family Report was released. The recommendations of that Report were that:

50.1The maternal grandparents have parental responsibility and that the children live with them;
50.2The children spend short periods of time fortnightly with the mother; and
50.3Both children spend regular time with Mr Paulis and that the younger child have some limited time with her own father.

On 6 November 2015 the mother filed an Amended Application conceding residence to the maternal grandparents. It is to the credit of the mother that she took this decision.
On 9 December 2015 a final Order was made by consent that the children live with the maternal grandparents. On that day directions were made for the preparation of the matter for trial in relation to outstanding issues of parental responsibility, time to be spent and communication.
On 29 February 2016 the solicitors acting for the mother filed a Notice of Ceasing to Act.
The mother asserted in the witness box that after her solicitors ceased to act, she approached another firm and had her files transferred to those solicitors. The solicitors named did not appear at any stage on the court record. The mother did not file any trial affidavit.
On the last working day before the commencement of this hearing, namely 12 August 2016 the mother filed an Application in a Case supported by an affidavit by herself asking that the proceedings be adjourned. Her main basis for the adjournment application was said to be the termination of her Legal Aid grant on 10 August 2016 and her appeal against that decision said to have been lodged on 12 August 2016.
The application to adjourn was opposed by the other parties. The application was dismissed for the ex tempore reasons given at that time.
The mother had come to court with prepared trial affidavits by herself, her current husband and her long standing friend and neighbour Mr G. These were the two witnesses identified in the trial directions of December 2015.

Leave was granted for the mother to rely upon those three affidavits. Each affidavit was affirmed in the witness box before the matter commenced.
The matter ran for three and a half days and decision was reserved.

Evidence

The documents relied on in respect of the application were as follows:
The Mother
(a)Amended Initiating Application filed 6/11/2015;
(b)Affidavit of the mother filed in Court 15/08/2016;
(c)Affidavit of Mr L filed in Court 15/08/2016;
(d)Affidavit of Mr G filed in Court 15/08/2016.
The Maternal Grandparents
(e)Response to Amended Initiating Application filed 20 November 2015;
(f)Minute of Orders sought the Respondent maternal grandparents
(g)Affidavit of the maternal grandmother filed 4 August 2016;
(h)Affidavit of the maternal grandfather filed 4 August 2016;
(i)Affidavit of Ms P – proposed supervisor filed 17 August 2016.
Reports
(j)Child Inclusive Conference Memorandum to Court dated 13 March 2015;
(k)Family Report dated 23 September 2015.

Oral Evidence

The Mother

The mother presented as an articulate, intelligent person with limited insight. The hostility she felt towards her parents, especially her mother, was on display through her answers in cross examination and the questions she asked her mother.
The mother considers that the children have been manipulated by the maternal grandparents to express fear of her and perhaps even to be fearful of her, although she was inclined to think that the concerns expressed by the children about her and her husband were not genuine concerns.
The mother strongly made out a complaint that she had been denied information about the children, with particular reference to not receiving school reports, nor information about their health and treatment from time to time.
The mother conceded that she had in the past sent abusive text messages to her parents but denied that she was continuing to do so presently.
She expressed as her main reason for participating in the proceedings was to address what she perceived as her parents bringing the children into contact with their “abusive fathers”.
The mother was cross examined about her use of alcohol and attempted to minimise the significance of this issue. For instance, she was asked about attending a drug and alcohol clinic in 2009.[5] She conceded that she had filled in an intake form in her own name and provided relevant responses. On 30 November 2009 the younger child was aged about 15 months. The history, examination and progress notes indicate that the mother had come in wanting to discuss past relationship issues with two male partners, including domestic violence issues – shoulder reconstruction, substance abuse, DOCS involvement, “not drinking ETOH now”, was smoking one cone of cannabis per night but now ceased.
[5] Exhibit 7
The mother denied that the information about substance abuse related to her. Rather she said, she went there because V’s father, Mr Delaney, was using Ice, alcohol and marijuana and “I went for advice about whether [V] was safe to spend time with him given that use of drugs”. I do not accept that evidence. The mother conceded that she was admitted to D Hospital in 2009, having drunk three quarters of a bottle of scotch which she estimated to be a 500 ml bottle.
The evidence the mother gave about seeking information in relation to Mr Delaney drug’s use by representing herself as the person with the problem is simply not credible.
She responded to the question that she was abusing alcohol regularly “if you could call once per fortnight regular, yes” and also conceded that she had on one occasion been found wandering in her underwear in public. The mother conceded she had, although blamed her doctor for having increased her medication to a level which she considered had made her anxiety worse.
Sadly the mother was confronted with evidence that her younger daughter has a low grade foetal alcohol syndrome, specifically Alcohol Related Neurodevelopmental Disorder (ARNDD). The mother said she did not believe that her use of alcohol during pregnancy has caused that disorder in her daughter. She was refused leave to tender research said to confirm that fathers can be responsible for the syndrome in their children. The relevant fact is that the child has the condition.
I interpreted this reaction as an attempt by the mother to minimise the impact of all her own behaviour on the children and to down play the significance of the complaints that the children have made, both to DFACS and to the Family Consultant on two occasions. That is not to say that the mother does not love the children, rather she has been unable to confront her impact on them, that they have felt frightened in her household as a result of her conduct, particularly with partners and in particular with her current partner and husband of four years, Mr L.
Mr L identified to a medical practitioner that he was introduced to drinking alcohol at age 12; is a binge drinker most of the time when he drinks and sought advice about changing his conduct with alcohol in January 2016.[6]
[6] Exhibit 3
Mr L has been suicidal and the mother has called both the Police and an ambulance in response.
The mother’s household must have been an emotionally chaotic experience for the children, the younger one in particular dreaded the loud arguing, fights, loud music and the behaviour of her mother and step-father when affected by alcohol.
The mother said she was prepared to comply with an order that she not bring the children into contact with her husband if she had unsupervised time. However, her lack of insight into the impact of her own behaviour and that of her partners on the children, together with the ongoing hostile blaming relationship she has with her parents, is inconsistent with the likelihood that the mother would protect the children by keeping them away from Mr L and generally keep them safe, both physically and psychologically.

The Mother’s Husband – Mr L

Mr L gave evidence in a candid way which included revealing the extent of his memory problems. On many occasions Mr L was content to say that he had no recollection of events but he would accept that whatever he had reported to various third parties must have been said or done at the time.
He was introduced to drinking alcohol by his father when he was aged about 12 years.
From age 18 when he joined a band, Mr L has been a regular drinker, mostly a binge drinker.
He testified that had ceased entirely in January of this year. Mr L is 50. If he has ceased all intake of alcohol through willpower, that is a significant and impressive thing to have done. However given his pattern of regular binge drinking since age 18 it is impossible to know whether he would maintain abstinence.
Mr L has also had real problems with his mental health and was diagnosed with depression around 2006/2007. He readily conceded that his mental health deteriorated in 2008 and that he was drinking at a very high level at that time. He resisted his doctor’s recommendation that he be referred for alcohol withdrawal and psychiatric management. He agreed that, at least at that time, if not at other times during his life, he was suffering from a problem managing his own emotions, particularly anger. Into this mix was use of about 30 grams of cannabis per day.
His marriage broke down at that time. There followed another short term relationship. During this period of turmoil Mr L became suicidal; he inflicted harm on himself by cutting himself with a knife.
Mr L denied punching his then wife in the face and punching his son who intervened on behalf of his mother but concedes he was charged with two offences at that time and although not convicted, was given a s 9 bond in respect of a grievance bodily harm with 18 months supervision.
There is no record of such conduct or similar charges since 2008, however frail mental health has continued. Later in that year with a new partner, there is evidence that Mr L told his then partner that he was gassing himself in the garage.
In April 2014, almost two years into his marriage to the mother in these proceedings, he is reported by the older child N as having threatened to gas himself in the garage.
Mr L denied that he had said that or attempted that course in 2014. The coincidence of threat is such, especially when there is nothing to support the child being told by anyone of what had happened to Mr L in a prior relationship, that it is probable that he did make such a threat whatever his actual intention was.
In 2013 Mr L damaged his hand by punching a computer. Also in that year he rang the Police for assistance with an alleged assailant and then became abusive towards the Police. He was heavily intoxicated at the time.
In April 2014 Mr L was taken to D Hospital. He had been drinking heavily, 12 stubbies in a session and there had been regular, intense arguments between himself and the mother about her childhood.
The marriage between the mother and Mr L took place within weeks of their first meeting. He brought with him his two children from an earlier marriage so that two adults and four children, who were not well known to each other, were combined in quite explosive circumstances.
He expressed evident anger and frustration with the maternal grandparents, referring to having captured film on a dash cam of the maternal grandmother driving along in the street where he lived and had sent an angry and abusive text message to the maternal grandmother criticising her for keeping the two children away from their mother.
Mr L said, and I accept, that he would be willing to stay away from the family home if the mother was able to spend time with her children there but that was not something that he had discussed with the mother.
Mr L readily conceded that he barely knew N who had only been a member of his household with the mother for a few weeks before she moved back to live permanently with her maternal grandparents. There is no evidence to suggest that he had had significant interaction with V in the period of about 15 months when she remained in the household.
There was an incident on Christmas Day in 2012 where the Police were called to the home of the mother and Mr L. They were both moderately intoxicated and loud music was playing. Mr L was unable to remember whether V was present at that time. Undoubtedly, if she was, it was a most unhappy Christmas Day for a child, then aged four.
In April 2014 Mr L was intoxicated and scheduled to D Hospital. This was after another episode of loud arguing and yelling between the mother and Mr L. Mr L had no particular recollection of these events although conceded the scheduling and that he had left the home by ambulance.
The proposition was put to him that it had not been a nice experience to observe for two young girls; N was a member of the household at that time. He conceded it and that it would have probably been frightening for them, however, when asked whether N was scared of him, his response was “No reason to be, I’ve done nothing to her”. I conclude from that response that Mr L does not understand the impact on children of seeing the adults who have charge of them, heavily intoxicated and in an uncontained, emotional state.
As recently as a month ago the husband attended on a medical practice wanting a particular Centrelink form signed by a doctor. Mr L became irrationally angry that the form was unavailable and that he was unable to understand the doctor’s use of English. He became overtly angry and left the room. He conceded he had a short fuse.

The Mother’s Friend – Mr G

Mr G is the mother’s next door neighbour and the god father of the child V. He is a strong supporter of the mother and remained throughout these proceedings to assist her in the presentation of her case. He is a man with a big family of adult children and thirteen grandchildren. I conclude that he has been of genuine assistance to the mother.
He referred to the day that she had been “bashed outside my house, dazed, bashed, eyes glazed, by [V’s] father Mr [Delaney]”. Unfortunately Mr G has not fully understood the history of the children coming into the care of their grandparents.
He referred to the maternal grandmother as a narcissist. Whilst he is entitled to hold that opinion it would certainly be very detrimental to the children if he spoke in that disrespectful way in front of them about their grandmother. I have no reason based on the evidence to think that he would.
After the passage of some time in the event that time between the children and their mother has restored a trusting relationship between them, it may be agreed to by the maternal grandparents that the children could spend time in the mother’s home (in the absence of Mr L). In those circumstances the children may well come into contact with Mr G.

The Maternal Grandmother

The maternal grandmother is 64. She has been married for 47 years and was 18 when the mother was born. The maternal grandfather was 21.
The evidence suggests that the maternal grandparents, as young parents, had their difficulties, that the maternal grandfather was a regular drinker and that there were disputes between them which “involved struggling and pushing and conflict”.
The thrust of the cross examination by the mother was to accuse her mother of being a bad parent and in effect of being a hypocrite given that there had been some abuse of alcohol and conflict in the family home as she grew up. This focus by the mother on her own childhood has, in my view, blinded her to the fact that the relevant matters are the circumstances now, that her parents are not the young parents who raised her, but are the grandparents in their sixties who have provided a safe haven for the two children from the chaotic and violent circumstances that the mother has exposed them to.
My overall impression of the evidence of the maternal grandmother was that she has tried to maintain a good relationship with her daughter and subject to the fact that each has a somewhat fiery aspect to their personalities has been reasonably successful with that.
It is apparent that the mother’s marriage to Mr L in August 2012, within weeks of having met him, was the last straw for the maternal grandmother in terms of the children’s safety. I accept her evidence that she fully accepted that the mother was responsible for her own decisions about relationships and the marriage but that she saw immediately a risk to the children and a likelihood of exposure to violence yet again for the two girls.
The maternal grandmother had supported and assisted the mother through the process of obtaining compensation for her injuries at the hands of Mr Delaney. She had been aware of the mother’s complaints of domestic violence and heavy drinking in the relationship with the child N’s father, Mr Paulis. It is probably the case that the maternal grandparents had hoped that the mother might focus her attention exclusively on the children after the relationship with Mr Delaney ended and was genuinely worried when a new relationship began.
The tenor of the mother’s cross examination was an immature one, repeatedly challenging her mother as to whether or not she had approved or disapproved of the mother’s adult relationships. Her questions were not directed to the welfare of the children, indeed the mother has consented to the children living her parents. She is an intelligent woman and I accept that that concession reflected her satisfaction that the children would be safe and well cared for by her parents.
The secondary focus of the mother’s cross examination of her own mother was the unfairness from the mother’s perspective that the fathers of the two children are spending time with the children by arrangement with the maternal grandparents, whereas she, the focus of the fathers’ violence, has spent very little time with the children and then only supervised in a centre.
At least at the beginning of this hearing the mother was seized by the injustice to herself of the situation and not the prolonged exposure of her children to violent, alcohol fuelled chaotic households.
I conclude that the maternal grandmother drew a line in August 2012 when she sought to remove both children from the mother’s care, succeeding with N but retreating from what would have amounted to a physical fight with her daughter to retain V, and battling since then to ensure a good future for the two children.
The maternal grandparents worked closely with DFACS throughout 2014 until DFACS closed their file. The mother probably did not fully understand the implications of the safety plan which the maternal grandparents had consented to.
The consequence of that was that when the maternal grandparents arranged for a family member to offer to supervise contact between the children and the mother, the mother rebuffed the offer which she took as a personal insult rather than what it really was, that is, compliance with the safety plan that the children not have unsupervised time with the mother without approval of DFACS.
There has been immense hostility between mother and daughter since but I conclude that the maternal grandmother has held the line in order to protect the children. She readily agreed that the children should have regular time with their mother. The maternal grandmother faced her daughter and said from the witness box “It is a matter for you to develop a relationship with them”. She also said this after conceding that supervised visits during the course of this year have reassured the children with this qualification “… but they have not wished to get in a car with you, I’ve told them to love their mother, I am sure they do, I want them to, I’m at my wits end”.
I conclude that the maternal grandmother had been willingly and happily present in the lives of her granddaughters throughout their lives, providing physical care for them and emotional support, that she was concerned at the extent to which her daughter had left the children with her and in day care but that she had been willing to go on that way until the children were once again exposed to a household of domestic violence in June 2012. The maternal grandmother stoutly rejected the proposition that she believed that her daughter should not have any interaction with the children, by stating “No, of course not”.
The maternal grandmother had not filled her affidavit with statements made by the children, particularly not complaints about the mother but when pressed by Counsel for the Independent Children’s Lawyer she gave evidence that N in particular did not want to be left alone with her mother and was not confident that the mother would behave in the way that she did at the W Contact Centre if left unsupervised. N has also been candid with her grandmother about her fear of Mr L and her fear that her mother will be hurt by Mr L, “He punches her, follows her around the house abusing her”.
The maternal grandmother readily conceded that V was fine with the idea of seeing her mother but that the period of time when V was separated from her sister and living in the mother’s household until April 2014, a period of about 15 months, was detrimental for her. For instance, she suffered from enuresis and took months after returning to live with her grandmother to return to being fully toilet trained. The maternal grandmother is concerned that unsupervised contact time permitted between V and her mother would cause the child to again regress.
I am satisfied that the maternal grandparents are doing everything they can to promote V’s healthy development; she has problems with her working memory and her eyesight as a result of the disorder previously mentioned. She had difficulty regulating her moods or to quote her maternal grandmother “Has meltdowns”. A psychologist has been consulted about that.
The maternal grandparents have full financial responsibility for the girls and all the activities they are involved in. For V, dancing, piano and cheerleading, as well as medical and psychological expenses. The mother makes no financial contribution at all. It is not unreasonable that they are highly protective of the two children and protective of the progress that has been made in their care.

The Maternal Grandfather

Mr Emery is 68. Mr Emery was not so much the focus of his daughter’s anger as the maternal grandmother had been.
He readily conceded that the children needed to see their mother. He referred to N having said on many occasions that she used to like doing things at her mother’s house. When asked whether he thought there should be a relationship maintained between the mother and the two children, he said this, “They wish it, we wish it, how often it happens should be left to experts, not to me”.
It is likely that the stress of this long conflict with his daughter has had a considerable impact on the maternal grandfather which has coincided with retirement in unhappy circumstances from February 2013.

The Family Consultant

The Family Consultant was brought up to date about the change in the parties’ positions and the situation of the children.
She confirmed her view that the children did need to see their mother regularly, preferably two hours once a fortnight, and that the proposal of the maternal grandparents of two hours once every two months was not sufficient.
The Family Consultant was strongly supportive of supervision to enable the children, particularly N, to regain confidence in their mother. Her secondary concern was that N has become a parentified child, that is, concerned to look after her mother and also to protect and look after her younger sister.
The Family Consultant explained that if time with the mother was unsupervised N would likely begin to parent the younger child and lose ground on being able to be a child herself in what remains of her childhood.
The Family Consultant was clear to say that there could be no certainty about when supervision should cease. That would be a matter of judgment of the maternal grandparents if it were the case that the court was satisfied that they would exercise their discretion in a child focused way.
Having read the material and heard from the maternal grandparents I am satisfied that they have maintained a child focus and will continue to do so. In the event that supervised time leads to a more trusting and stable relationship between the children and their mother, it is likely that adjustments will be made.
I raised with the Family Consultant the fact that the older child at 13 cannot be supervised for too much longer, that she is a mature and more particularly, an intelligent girl, five years older than her sister chronologically but that the gap is made wider by some developmental delay for V.
The Family Consultant expressed the view that it would be a positive message for N if she knew that she had a choice in whether or not to attend supervised visits but that she likely would want to, in order to be protective towards V.
In response to brief questions by the mother, the Family Consultant expressed a clear view “There is a benefit for the children in having a continuing relationship with you provided it is safe”.
I conclude from the Memorandum, full Family Report and oral evidence of the Family Consultant that she is confident that there is value for the children in the relationship with their mother but their physical and emotional safety requires supervision until such time as the maternal grandparents are confident that it is no longer needed.
Orders for supervision have been formulated on the basis of that evidence.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
There is an order in place by consent for the children to live with the maternal grandparents.
The issues are who should have parental responsibility; time and communication between the mother and the children, as well as any other specific issues.

Parental Responsibility

In this case, the maternal grandparents, who have the children living with them, are seeking parental responsibility.
Each of the parents of a child who is not 18 has parental responsibility for that child unless and until an inconsistent Court Order is made.
If a parental responsibility order is to be made for a person who is not a parent, then the parenting order confers parental responsibility only to the extent to which the order confers on the person, duties, powers, responsibilities or authority in relation to the child. A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent, if any:
a)Expressly provided for in the order; or
b)Necessary to give effect to the order.
In this matter the two fathers did not participate, content to make private arrangements with the maternal grandparents. The litigants before me have been the maternal grandparents and the mother.
The relationship between the mother and her parents is presently fractured. There is no prospect of cooperative child focused discussion between them.
I am satisfied that the maternal grandparents should have the parental responsibility for the children to the exclusion of the three parents.
On that basis, an order is made that the maternal grandparents have sole parental responsibility, shared between themselves.
It is however important that the mother be kept advised of long term decisions to be taken and to have the opportunity to express a view about what should happen with particular reference to school to be attended, specialist medical attention and therapeutic interventions. The child V is likely to have the benefit of enrolment in the NDIS and the mother’s involvement may be of assistance there. Accordingly, an order will be made for a procedure whereby the maternal grandparents advise the mother of long term decisions as they arise, consider her views and advise her of the decision taken.
To be clear, this is not a negotiation. It is a method for consideration of the mother’s views before a decision is taken by the maternal grandparents on long term issues.
It will be a matter for the maternal grandparents whether or not they engage with the two fathers in a similar way.
It is not appropriate in my view to make an order for shared parental responsibility between the maternal grandparents and Mr Paulis, as was proposed by them, despite his positive interaction with the children and regular time with them.
I am conscious of the evidence of the Family Consultant that she was concerned to have Mr Paulis included in the event that the grandparents became unable to care for the children on short notice. It is a valid consideration and the prospect of a further dispute flaring in this court in those circumstances is certainly a negative one, however that is a matter that can be addressed in other ways by the maternal grandparents, for instance, by nomination of a testamentary guardian.
The court has not had evidence from Mr Paulis and the opportunity to come to a conclusion about whether or not he should have parental responsibility for his own child and for V to any extent.

Considerations in relation to Best Interests

Views of the children

Of the mandatory matters which I must take into account I accept the submission of Counsel for the Independent Children’s Lawyer that the children’s views are a significant matter.
The older child does not want to spend unsupervised time with her mother, she does not want to return to the mother’s home. She certainly does not want to be brought into contact with Mr L. She is hopeful of being able to spend time with the mother and that the mother will focus her attention on herself and V during those times.
The younger child wants to see her mother and was missing her “a bit” at least in September 2015.
Both girls are hurt by the idea of their maternal grandparents being criticised by the mother in circumstances where they greatly love their maternal grandparents and feel happy and safe in their household.

Relationships

The children have their closest relationships with the maternal grandparents, with their mother and with Mr Paulis. The child V is developing a relationship in a safe supervised setting with her father Mr Delaney. That is being carefully managed by the maternal grandparents.
The maternal grandparents have taken on the full time care of the children and are providing a stable household which has enabled N to reach her potential at school. She is achieving academic excellence. They have also engaged with therapeutic intervention for V and involved her in enriching extra- curricular activities.
The mother and the maternal grandparents live within three blocks of each other which makes visits away from the mother’s home seem artificial. Nevertheless in these circumstances, time spent between the children and their mother needs to be away from her home and in an enjoyable setting which may be the home of the maternal grandparents, perhaps even in their absence initially, in the presence of the supervisor, but preferably out and about in enjoyable settings where the experience can be more natural than in a contact centre.

Capacity as a parent

The capacity of the mother has been an issue in these proceedings. She has either not understood or has understood and denied the impact on her children of the household she has created with men who have been violent and dangerous for her and for the children. Her focus on the fact that her own childhood was characterised to some extent by heavy alcohol use and conflict between her parents has not been helpful to the children. The decisions in this case cannot be based on redressing past conduct.
The obligation of the Court is to give the safety of the children priority over maintaining meaningful relationships. However, if the mother takes a cautious approach, is compliant and consistent with spending supervised time, is focused and interested in the lives of the children and does not burden them with her own feelings of mistreatment at the hands of the maternal grandparents, then the relationships may be fully restored, trust increased and the opportunity to develop a more natural level of contact may eventuate.

Age and characteristics of the children

The children are two girls aged 13 and eight.
The older child is already at high school, towards the end of her second year there. Supervised time cannot continue indefinitely for N. I accept the opinion of the Family Consultant that supervised time until age 14 will be more than enough. It is during that time that the mother has the opportunity to repair her relationship with the child and set them both up for a good mother and daughter relationship when the child is a young adult.
The younger child is eight and needs therapeutic intervention and strong support in order to achieve her potential. She wants to see her mother and is hopeful of doing so. She wants to follow her sister and not be separated from her. It is likely that her sister will continue to be protective of her.
The Family Consultant raised the possibility that as the older child moves out of supervised time with the mother, V may be able to develop a different relationship, one to one, also setting the scene for the mother/daughter relationship to flourish in future.
The orders are made for a certain amount of contact between the two girls and their mother in the safe setting of supervision.
There will also be provision for the encouragement of telephone calls and correspondence but not compulsion.
In the event that things progress well, arrangements may change by consent. If not, orders provide sufficient time and communication for the relationship to be kept alive until such time as the girls are young women and can make their own decisions.

Restraints

It is important that all parties are restrained from criticising each other and extended family members in the presence of the children. Criticism of the maternal grandparents by the mother to the older child has adversely affected N’s relationship with her mother.
The mother is entitled of course to hold and express her own views about her childhood and her experiences of the maternal grandparents as parents to her. The maternal grandparents are likewise entitled to their views about the conduct of their daughter as a parent.
The intent of orders is to restrain the expression of negative views to and in the presence of the children.
A restraint is made on the mother bringing the children in contact with her husband. His evidence was of willingness to cooperate with such an outcome.
The order is made because the children have been frightened by his conduct in the past but also because the children should have the undivided attention of their mother during periods of time together.
I have been urged on behalf of the maternal grandparents to make an order restraining the mother from bringing Mr G into contact with the children. Having heard his evidence I conclude that he is a man of strong opinions which he freely expresses in a way supportive of the mother and critical of her parents. However I consider he is unlikely to do so in front of the children.
I do not consider there is sufficient evidence to justify making such an order; he does not represent a threat to their safety or welfare.
I do however consider it important that the mother alone spends time with the children and that third parties generally should be restrained from attending with her unless or until the relationship between the mother and the maternal grandparents improves to the extent that they are confident to allow other parties to attend. It is possible, but not certain that one of those could be Mr G in future in the circumstances outlined. He is a neighbour of the mother.
Further he is the younger child’s godfather and it would not be in her best interests to come to the view that he represents a source of harm to her.

Independent Children’s Lawyer

Orders provide for the children to meet with the Independent Children’s Lawyer to have the orders explained and any questions answered. Also for the Independent Children’s Lawyer to provide the Orders to the schools the children attend.
Orders are made accordingly.

I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 September 2016.

Associate:

Date: 6 September 2016

[2016] FamCA 747

6 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent