Lucas and Wragge and Ors
[2019] FamCA 72
•19 February 2019
FAMILY COURT OF AUSTRALIA
| LUCAS & WRAGGE AND ORS | [2019] FamCA 72 |
| FAMILY LAW – CHILDREN – Application by child’s father for child to live with him – Application by respondent mother for child to live with her in circumstances where child has been living with maternal grandparents in the interim where child lived with the mother prior to proceedings commencing – Separation of siblings - With whom a child lives – With whom a child spends time and with whom a child communicates – Allegations of violence – Orders that child live with the maternal grandparents and spend time with the father – Order that mother spend supervised time with the child. |
| Family Law Act 1975 (Cth) |
| J v C in [1969] 1 All E.R. Yamada & Cain [2013] FamCAFC 64 |
| APPLICANT: | Mr Lucas |
| 1st RESPONDENT: | Ms Wragge |
| 2nd RESPONDENT: | Mr Wragge |
| 3rd RESPONDENT: | Ms C Wragge |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
| FILE NUMBER: | HBC | 293 | of | 2017 |
| DATE DELIVERED: | 19 February 2019 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 16, 17 & 18 May 2018, 5, 6, 7, 8 & 9 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Mooney |
| SOLICITOR FOR THE APPLICANT: | PWB Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Saw |
| SOLICITOR FOR THE 1ST RESPONDENT: | Corbett Jessop Law |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Coleman SC |
| SOLICITOR FOR THE 2ND RESPONDENT: | Gibson Howlin Lawyers |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Coleman SC |
| SOLICITOR FOR THE 3RD RESPONDENT: | Gibson Howlin Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr P Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission |
Orders
That all previous parenting orders in relation to X born … 2011 (‘the child’) are dismissed.
Mr Lucas (‘the father’) and Ms C Wragge (‘the maternal grandmother’) shall have equal shared parental responsibility for the child.
In relation to any decision which the father and maternal grandmother make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long-term welfare of the child, they shall, where reasonably practicable, they take the following actions before making such decision:-
provide Ms Wragge (‘the mother’) with no less than fourteen (14) days’ notice in writing of any such proposed decision with respect to the child; (a)
the father or (and preferably) the maternal grandmother are to consult with the mother by email or text communication unless they elect to communicate by telephone or in person with regard to any such proposed decision and make a genuine effort to give consideration to the mother’s expressed views and, should the relationship between the parties permit, make a genuine effort to reach agreement about any such proposed decision with respect to the child; (b)
In the event that no agreement is reached between the parties, the father and the maternal grandmother shall make the final decision and within fourteen (14) days of so doing, provide the mother with written confirmation of the decision, noting that email or text message is sufficient.(c)
The child shall live with the maternal grandmother and Mr Wragge (‘the maternal grandfather’) except at times when she is to live with the father pursuant to these Orders or such other or alternate times as is agreed between the father and the maternal grandmother.
The child shall live with the father as follows:-
for so long as the father is ordinarily resident in the State of Tasmania, for seven (7) nights in each mid-year New South Wales holiday period, in Tasmania, with the maternal grandparents and the father sharing equally in the travel costs necessary to effect this time;(a)
for three (3) weeks in each end of year New South Wales school holiday period, in Tasmania, with the maternal grandparents and the father sharing equally in the travel costs necessary to effect this time;(b)
such other times by agreement with the maternal grandmother in Sydney upon giving no less than fourteen (14) days prior notice;(c)
at other times by mutual agreement between the maternal grandmother and the father; (d)
in the event that the father is ordinarily a resident in New South Wales, time as defined in (a), (b), (c) and (d) hereof, and during school term each alternate weekend from after school Friday until before school Monday or the Tuesday if the Monday is a pupil free day or a public holiday.(e)
The mother shall spend time with the child, as mutually agreed with the maternal grandmother, subject to such time being supervised by:-
the maternal grandmother;(a)
the maternal grandfather;(b)
any one or other of the mother’s siblings, being Ms E, Ms F, or Mr H (each of whom has given or will give an appropriate Undertaking to the Court); or (c)
such other person or persons agreed as between the father and the maternal grandmother. (d)
The maternal grandmother will use her best endeavours to arrange and facilitate the child to spend supervised time with and/or communicate with the mother (in accordance with Order 6 on special occasions such as Christmas Day, Easter, the child’s birthday and Mother’s Day.
The maternal grandmother will use her best endeavours to arrange and facilitate the child to spend time and/or communicate with the father in on special occasions such as Christmas Day, Easter, the child’s birthday and Father’s Day.
The maternal grandmother shall facilitate and encourage communication between the father and the child, by telephone, Skype or FaceTime, on Wednesday and Sunday at 7.00pm and such other times as are reasonably requested by the father and/or the child.
The maternal grandmother and/or the father shall notify each other and the mother, as the case may be, as soon as practicable if the child should suffer any illness or injury requiring hospital admission, such notification to include the address and telephone number of the hospital.
The child be permitted to travel internationally as provided by s 11(1)(b) of the Australian Passports Act 2005 (Cth), and for this purpose the maternal grandmother and the father jointly are permitted at any time to apply or reapply for the issue of an Australian passport to the child, which is to be retained by the maternal grandmother.
In the event that the maternal grandmother or the father wishes to take the child on an overseas holiday, then such party shall be permitted to travel overseas provided that the maternal grandmother or the father notify the father or the maternal grandmother (as the case may be) and the mother no less than twenty eight (28) days in advance of the proposed departure date, and provide them with copies of return airline tickets for the traveling responsible adult and the child, together with a copy of the proposed travel itinerary and address where the child will be staying.
The requirement that the mother’s time with the child shall be supervised shall continue until written agreement is reached between the father and the maternal grandmother.
Subject to Order 13 above and pursuant to s 64D(2) of the Family Law Act 1975 (Cth) the Order requiring supervision of the child when spending time with the mother may only be varied by a subsequent Order of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications be and are dismissed other than costs, and any costs applications are to be dealt with in accordance with the Family Law Rules 2004 (Cth).
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage Senior Counsel and Counsel to attend.
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 Lucas & Wragge 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 HOBART |
FILE NUMBER: HBC 293 of 2017
| Mr Lucas |
Applicant
And
| Ms Wragge And Mr Wragge And Ms C Wragge |
Third respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
This is a proceeding in relation to the parenting arrangements for X, aged six (‘the younger child’) who is the child of Mr Lucas (‘the father’) and Ms Wragge (‘the mother’). Each parent seek orders that the younger child live with that parent and each expresses serious concerns about the capacity of the other to parent the child.
The child’s maternal grandparents, Mr Wragge (‘the maternal grandfather’) and Ms C Wragge (‘the maternal grandmother’) (collectively ‘the maternal grandparents’) are parties and are the applicants in these proceedings. They seek orders that the younger child live with them and they express serious concerns about the capacity of the mother and (to a lesser extent) father to parent the child.
The younger child is aged seven and has shared her life so far with her 12 year old sister, J (‘the elder child’), who is a child of the mother from a previous relationship. The father seeks no parenting orders in regard to the elder child, given her age and clear preference to live with the maternal grandparents. If an order is made that the younger child live with her father it would mean that these sisters would be separated, with one living in Sydney NSW and the other in Hobart Tasmania.
In separate proceedings the maternal grandparents are seeking orders that the elder child live with them and spend supervised time with the mother. As a consequence running parallel with this case are proceedings relating to the elder child. The elder child’s parents are the mother and Mr K (the elder child’s father’). They are the respondents in other proceedings also commenced by the maternal grandparents.
The elder child’s father did not meaningfully participate in the proceedings regarding his daughter, other than to express his view that the elder child should live with her mother. I had regard to that view. The elder child has had little to do with her father since at least 2009, when the elder child was aged about three.
The substantive question is whether the younger child lives with her mother, father or maternal grandparents. This is combined with questions of parental responsibility, time with the other responsible adults and if the child is at risk in the care of the mother, whether that risk can be ameliorated by some form of supervised time.
A single Independent Children's Lawyer was appointed to represent both children. Fortunately, each of the parties (other than the elder child’s father) were represented and to the extent that the mother was assisted by Legal Aid, I thank the relevant Legal Aid Commission/s.
The father (with the emotional and financial assistance of the paternal grandparents) and the maternal grandparents were legally represented. Given the complexity of the issues the legal costs would have been a heavy burden. However, having that expertise enabled better informed decision making.
This Court had considered consolidating these two proceedings. However, the effect of that course would have been to open the file in relation to the young child and her life to the elder child’s father. Given the safety concerns raised by the parties to these proceedings and the Independent Children's Lawyer, the proceedings were run in parallel. Given the powers under Division 12A of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) and the consent of the parties who participated all of the evidence was heard at the same time and was evidence for each of the cases.
A single expert psychiatrist was appointed, Dr L (‘the single expert’). He provided a report[1] and evidence which was used in both proceedings.
[1] Exhibit E43.
The elder child and the younger child have been brought up together since the younger child’s birth in 2011. The evidence is that these sisters are emotionally close despite there being about a six year difference in age. The elder child is currently in Year 7 at high school in Sydney. The younger child is at primary school in Sydney.
The mother and father lived together from 2009/2010 and the younger child was born shortly after that relationship commenced. They lived together primary in New South Wales.
In early, 2017 the parties moved to Tasmania; there are issues as to the nature and even the reality of that move. However, by March 2017 the parties had separated and the mother and the two children had returned to live in Sydney or other parts of New South Wales, the details of which I will discuss later in these reasons.
In December 2017 there were concerns about the mother’s mental health and the safety of the children in her care and a recovery order was made for the younger child. These orders provided that the younger child live with the father and orders were made for the protection of the elder child. The mother fled with the children and tried to hide from the effect of the Court Orders.
On about 17 January 2018 the younger child was recovered and placed into the care of the father. The elder child went with the younger child, with the consent of the mother. The elder child was voluntarily returned to the care of the maternal grandparents and the mother in late January 2018.
On 2 February 2018 there was an interim hearing and the children were placed essentially in the care of the mother and the maternal grandparents and orders were made for the younger child to spend time with the father. The matter was listed for final hearing in May 2018.
The father sought no orders in respect of the elder child. His case in relation to the younger child is that :-
(a)he have sole parental responsibility for the younger child;
(b)the younger child live with him;
(c)the younger child spend block time with the maternal grandparents (and thus the elder child) in all holidays;
(d)the maternal grandparents (and thus the elder child) spend further time with the younger child in Tasmania;
(e)the costs of such travel be shared equally between the father and the maternal grandparents;
(f)the mother spend supervised time with the younger child at the Contact Centre, until such time as the mother’s treating doctor confirms her adherence to treatment and stability of health, at which time he proposes that the mother’s time be supervised by the maternal grandparents, if they so agree.
The case for the mother in relation to the younger child is that:-
(a)Eventually the younger child live with the mother after a build up with the grandparents;
(b)she have sole parental responsibility for the younger child;
(c)the precise orders are set out in Exhibit 47(b).
I have had regard to those proposed interim and final orders including the time that the younger spends with the father and how the younger child communicates with the father. It also deals with schooling, questions of the father’s alcohol use, the mother’s medical care, passports and overseas travel.
The case for the maternal grandparents in relation to the younger child is that:-
(a)the younger child live with them;
(b)they have sole parental responsibility for the younger child;
(c)In relation to any decision which the maternal grandparents are required to make in relation to education, religious and cultural upbringing, health and any other decision impacting on the younger child, they shall where reasonably practicable, undertake the following actions before making such decision:-
(i)provide the mother and father with no less than fourteen (14) days written notice of any such proposed decision in respect of the younger child;
(ii)the maternal grandparents are to consult with the mother and father by email or text communication unless they elect to communicate by telephone or in person and they will make a genuine effort to give consideration to the father’s and mother’s expressed views and, should the relationship between the parties’ permit, make a genuine effort to reach agreement about any such proposed decision with respect to the younger child;
(iii)failing agreement, the maternal grandparents shall make the final decision and within fourteen (14) days of doing so, shall provide the mother and father with written communication of that decision.
(d)the mother spend time with the children, as mutually agreed with the grandparents, subject to such time being supervised by either or them, or any of the mother’s siblings, Ms E, Ms F, or Mr H, each of whom has given an appropriate Undertaking to the Court.
(e)the father spend time with the younger child (while father is residing in Tasmania) as follows:-
(i)for a period of seven (7) nights in each mid year New South Wales holiday period in Tasmania, with the parties equally sharing the travel costs;
(ii)for two (2) weeks in each end of year New South Wales School holiday period, in Tasmania, with the parties equally sharing the travel costs
(iii)such further times in Sydney as agreed upon giving no less than fourteen days’ notice
(iv)at other times by mutual agreement between the parties;
(f)in the event the father is ordinarily a resident of New South Wales the time as defined in in order (e) hereof; and each alternate weekend from after school on Friday until before school Monday.
(g)the maternal grandparents will use their best endeavours to arrange and facilitate time to enable the mother and father spend time with the children for special occasions such as Christmas Day, Easter, the younger child’s birthday, Father’s and Mother’s Day and the father and mother’s birthdays;
(h)mother and father be notified as soon as practicable if the younger child should suffer any illness or injury requiring hospital admission, such notification to include the address and telephone number of the hospital;
(i)the younger child be permitted to travel internationally and that they be permitted at any time to apply or reapply for the issue of an Australian passport to the younger child, which is to be retained by them;
(j)they be permitted to take the younger child on an overseas holiday, provided that they give the mother and father twenty eight days’ notice and provide details of the travel and any travel documentation including airline tickets.
Unsurprisingly, given the complexity of this matter, an Independent Children’s Lawyer was appointed to represent the interest of both children and one lawyer undertook that task.
BACKGROUND
The general background was set out in the case outline prepared by the father’s counsel. It contained the following:-
1953 Maternal grandfather born. 1953 Paternal grandfather born. 1956 Paternal grandmother born. 1956 Maternal grandmother born. 1982 Mother born. 1983 Father born. 2006 [The elder child] born. 2009-2010 Mother and father commence a relationship in Sydney. 2011 [The younger child] born. 2014 Mother alleges the family were evicted from home because of father. June/July Father alleges mother threw a glass bottles at him whilst he was holding [the younger child]. November 2016 Parents’ lease ends.
Mother alleges parents’ relationships ends.[2]Christmas/New Year 2016-17 Maternal grandmother alleges The elder child showed her a bruise and said it was caused by the father. 6 January 2017 Parents move to Tasmania and stay with paternal relatives. [The younger child] enrolled at M School and the elder child at N School. January 2017 Father alleges mother hit him whilst he was driving 30 January 2017 Mother returns to Sydney with [the younger child] and [the elder child], telling father it was to simply collect a car. Stays with her parents. Enrols girls at [a private school at Suburb O. Girls attend for one week (mother says two weeks). Mother then has fight with her mother and moves to P Town with the [children]. 27 February 2017 Father secures employment in Tasmania Saturday 18 March 2017 The parents and [the children] return to Tasmania, after father flies up to collect them. 21 March 2017 Date of separation according to the father. Mother leaves the paternal grandparents’ home with the [children]. 21-27 March 2017 Mother and children living in mother’s car and various hotels in Hobart. 24 March 2017 Initiating Application filed by father in Federal Circuit Court. 27 March 20187 Mother and [the children] fly to P Town and then on to Sydney. 17-26 April Mother returns to Hobart with [the younger child] unannounced. Mother starts pressing father for a reconciliation, including in front of the [children]. 25 April 2017 Mother alleges father again physically forces her and the [children] out of house.[3] 29 April 2017 (or 30 April) Mother returns to Tasmania (without children) unannounced. Threatens to drive into a power pole. Police called. 2 June 2017 Child Dispute Conference Memo created by family consultant Ms Q. Mother (by phone) tells [Ms Q] that physical violence occurred “a couple of times during the relationship.” 23 June 2017 Mother arrived in Hobart with [the younger child] unannounced. 28 June 2017 Interim order made providing for Father’s time and communication with [the younger child]. 11 July 2017 Mother fails to facilitate changeover at Sydney airport on 11 July. Once father arrived at Sydney the mother advised she was driving down from P Town. Father returns to Hobart without [the younger child]. September /October school holidays 2017 Father due to collect [the younger child] from Sydney for a five day period. Mother instead demands father pay for fares for her and [the children] to travel to Tasmania and drives to Tasmania. Mother advises father she would be remaining in Tasmania. 1 October 2017 Mother berates and abuse father at his workplace for 50 minutes in children’s presence. 6 October 2017 Child Inclusive Conference Memo created by Ms Q. Mother confirms to Ms Q she seeks reconciliation and relocation to Hobart. Father directly rejected reconciliation to the mother in the presence of [Ms Q]. Mother alleges to [Ms Q] that the father slept in his parents’ bed naked and asked the younger child to join them.
[Ms Q] noted the father’s “calm, child-focussed, authoritative parenting style” and his “warm familiar relationship” with [the younger child.] She noted the mother’s “high level of attunement” to [the younger child] and an “educative, positive parenting style.”6-10 October 2017 [The younger child] spends four days with father after intervention of [Ms Q]. Father receives 199 text messages from the mother during this time. 12 October 2017 Father contacted Independent Children's Lawyer regarding his concerns of [the younger child] being homeless and not in school. 17 October 2017 Father notifies Child Safety about [the younger child’s] situation. 18 October 2017 Mother makes threat to kill herself amidst 41 text messages to the father in which she employs an avalanche of profanity including referring to his “sicko evil parents,” “sick fuck Mother,” sadistic evil bitch, 3 sadistic psychopaths, and repeatedly called him a “cunt, backstabbing dog, gutless pathetic cunt”. She repeatedly demands the father take the children from her.
The mother’s abusive texting on this day is replicated on most days to varying degrees.25 October 2017 Father files interim application to have [the younger child] live with him. Independent Children's Lawyer files application requesting Child Safety to intervene. 3 November 2017 Mother advises Court that she is now in New South Wales and children re-enrolled at school. Matter transferred to Family Court. Early November 2017 Mother returns birthday present to [the younger child] from father to him November /December 2017 Mother advises father she is not living with her parents 11-15 December 2017 Mothers barrage of concerning text messages to father continues 21 December 2017 Recovery order made. Father attends Sydney until 24 December whilst Police attempt to retrieve [the younger child]. 5 January 2018 Father seeks location order. Court also orders paternal grandfather to advise of mother’s whereabouts if became known to him. 17 January 2018 Mother located and recovery order enforced. Mother subsequently conveyed by police to a hospital. Children commence living with father after Police and mother insisted [the elder child] accompany them. Children travel with almost no clothes or personal belongings. Early 2018 Father facilitates birthday calls for [the elder child. [The elder child] spends her birthday at a play centre and is taken out for a meal with her cousins. Early 2018 Paternal grandfather speaks to maternal grandfather who agrees to let the paternal grandfather know of [the elder child’s] return flights. Flight details not received by paternal grandfather and follow up messages to paternal grandfather which went unanswered. Early 2018 Father’s aunt Ms B gives [the elder child] a birthday event. Early 2018 [The elder child] returns to Sydney after the parties and the children had seen Ms Q.[4] 2 February 2018 Interim hearing: Court ordered that [the younger child] live with mother at paternal grandparents' address. 24 February 2018 Mother takes [the younger child] from maternal grandparents’ home. Order requires grandparents to at all times supervise. No steps taken by grandparents to recover [the younger child]. Mother returns [the younger child] following day. 27 February 2018 Mother advises father that she has been kicked out of the maternal grandparents’ house. 28 March 2018 Mother attempts to remove [the younger child] from maternal grandparents. Police attended home. [The younger child] is present. 29 March 2018 Mother advises father that the maternal grandfather has assaulted her. Maternal grandfather says that [the younger child] had to be sent next door due to mother arriving at his home and having to ‘calm her down’. [The younger child] then sent to aunt Ms E’s to stay. 30 March – 7 April 2018 The younger child spent time in Hobart. Prior to visit mother calls Tasmania Police to check [the younger child] in Hobart when the younger child is not there. 9 April 2018 Mother advises father that her parents will not let her see the children or speak to her. 15-22 April 2018 [The younger child] spends time in Hobart. 20 April 2018 Family Report prepared. May 2018 Hearing. 20 June 2018 – 29 September 2018 Vile and awful text messages by the mother to the father. 1 June 2018 Mother intercepted by police and found driving a motor vehicle with and excess of alcohol in her system. August 2018 Mother pleads guilty to drink driving and her licence is suspended for 1 year. From March 2018 to August/September 2018 Mother does not see the children.
[2] Mother’s affidavit filed 30 March 2017 paragraph 2.
[3] Ibid at 8.
[4] There was an issue as to whether the elder child returned to Sydney that day or had returned to Sydney a few days before. Nothing much swung on that difference.
This matter was listed for hearing for three days commencing 16 May 2018. In the month preceding the hearing the position regarding the elder child, and the younger child, became of greater concern given the mother’s attempts to take the younger child contrary to the interim orders that were made in February 2018.
As such after submissions, interim orders were made that the children live with the maternal grandparents and that the maternal grandparents have sole parental responsibility when the children are in their care. That provision was put in place to ensure that if any endeavour was made by the mother to remove the younger child from the maternal grandparents, there was clear authority for the maternal grandparents to retain that child.
The May 2018 trial commenced and was run concurrently with the proceeding in respect of the elder child. The two sets of proceedings were adjourned part heard to November 2018.
Leave was given for the mother to call any updating evidence and the maternal grandparents sought to file documents setting out any changes to their evidence following their trial affidavits.
The mother did not wish to attend the hearing in person and sought to attend and give evidence by video-link. Given the mother’s fragile emotional and/or psychological condition, leave was given in that respect.
The mother wished to attend the interview with the single expert psychiatrist, in R Town, by video-link or telephone. I was not satisfied that this would enable a detailed report to be made available and as such I directed the mother to attend personally. I noted that the maternal grandparents would provide airfares to and from R Town and one night’s accommodation for the mother if necessary.
The draft orders in respect of the children were set out in Exhibit E27 (the orders sought by the maternal grandparents in respect of the elder child) and Exhibit E28 (the proposed orders by the father in respect of the younger child). These orders were the subject of agreement between the father and the maternal grandparents except for order 5(a) regarding the extent of mid-term holiday periods and an interim determination was made in that respect.
The mother sought the orders set out in her amended response which was substantially that the children live with her and spend limited supervised time with the father being those contained in orders 1, 2, 3(a), 4, 5, 6, 7, 8(a), 8(d), 8(f), 9, 10, 11, 12, 13, 14, 15, 17, 22 and 26.
The mother’s application for those orders was unsuccessful.
In these reasons any statement of fact is to be regarded as a finding of fact unless it is a clearly not given the context of the statement.
The mother was represented by competent counsel and solicitor throughout the hearing. However, the mother struggled to participate in the hearing. In the May 2018 hearing days she attended by video link.
In the five additional days of hearing in November 2018 the mother initially attended in person, including the giving of evidence in person. The mother requested that the father and paternal grandparents not be present in court when she was giving evidence. Naturally the Court facilitated this request and arrangements were made for the father and his family to view the proceedings from a video link, but without a reciprocal link of him back into court. This was to allow the mother to give evidence without the father being present or visible to her.
At one stage the mother sought that the father’s barrister also be excluded from the court room. Given the need for procedural fairness that request was denied.
To her credit the barrister for the father conducted the cross-examination of the mother in a sensitive and non-confrontational manner. The mother’s evidence was completed on Wednesday 7 November 2018. The following day the Court was informed that the mother had returned to Sydney and sought to attend by telephone link. That request was accommodated and endeavours were made for that to occur. However, the telephone link to the mother’s mobile telephone was tenuous and noisy. Endeavours were made to connect the mother via a land-line or better telephone service, but that did not succeed. The mother’s counsel indicated that the mother had decided not to pursue attending by telephone and further that she (the mother’s counsel) had sufficient instructions to complete the matter.
THE LAW
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deal with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
Section 60CA provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(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).
(3)Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(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;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The House of Lords in J v C in [1969] 1 All E.R. at page 824 Lord MacDermott said, when considering rights of custody and deciding that the welfare of the infant as the first and paramount consideration, the following:-[5]
3.While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over considerations, such as rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights however, remain qualified and not absolute for the purpose of the investigation, the broad nature of which is still is described in the fourth of the principals enunciated by FitzGibbon, L.J. in re: O’Hara [[1900] 2 I.R. at page 240].
4.Some of the authorities convey the impression that the upset caused to a child by change of custody is transient and a matter of small importance. For all I know that may have been true in some cases containing dicta to that effect. But I think a growing experience has shown that it is not always so and that serious harm even to young children may, on occasion, be caused by such a change. I do not suggest that the difficulties of this change can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of change of custody will often be worthy of the close and anxious attention which they undoubtedly received in this case.
[5] Page 824.
These views were in many ways enshrined in the Act. The question of primacy of parenthood was in recent years discussed by the Full Court in the Yamada & Cain [2013] FamCAFC 64 where the appellant contended that the primary considerations contained in the Act had the intention to give primacy to parenthood in determining the best interests of the child.
The Full Court, comprising of Murphy & McMillan JJ discussed the importance of parenthood and the appellant submitted that ‘both the Act and Authority demand that significant weight must be attached to parenthood in making ‘live with’ orders and Her Honour paid no, or insufficient, regard to each’. Their Honours went on to reject that argument. The basis for that rejection was set out from paragraph 19 onwards.
The Full Court quite properly acknowledge that the fact of parenthood is centrally important in a decision about a child’s best interest. Further, that the primary considerations under s 60CC of the Act do not apply to non-parents however, the Court did not conclude that this gives primacy to being a parent per say. The Full Court quoted with approval the reasoning in Donnell & Dovey [2010] Fam CAFC 16 and said:-
25. In Donnell, the Court went on to say in the paragraph from which the earlier quoted passage emerges (at [101]) and the succeeding paragraph of the judgment:
However, [the fact that s 60CC(2)(a) makes no reference to non-parents] does not give rise to any difficulty in ensuring all relevant matters are taken into account. In a particular case, the maintenance of a meaningful relationship with a non-parent may be equally important or more important than the maintenance (or establishment) of such a relationship with a parent. As with the additional considerations, it is not necessary to classify a non-parent as a “parent” to ensure that clearly relevant matters are given appropriate weight.
We should also stress that the fact that the benefit to the child of the maintenance of a meaningful relationship with a non-parent can, on our analysis, never be a “primary consideration” does not of itself mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent. For discussion of the relative importance of the primary considerations in comparison to the additional considerations see Marsden & Winch (No. 3) [2007] FamCA 1364 per Warnick and Thackray JJ at [77] and [78], Champness & Hanson (2009) FLC 93-407 at [101] to [103], Mulvany & Lane per May and Thackray JJ (supra) at [84] and Aldridge & Keaton (supra) at [74] and [75].
(Bold emphasis added).
26. Moreover, as was said in Aldridge, above, at [74], in respect of the Primary and Additional Considerations:
It is clear however from the EM that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary consideration …
and more broadly, at [75]:
While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant …
The Full Court in Yamada & Cain (supra) went on to conclude:-
27.The broad enquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognise that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.
I will endeavour to apply the principles of law to the facts.
THE EVIDENCE
The father relied on the following documents:-
(a)an amended initiating application filed 27 April 2018;
(b)his affidavits filed 27 April 2018 and 30 October 2018;
(c)an affidavit of Ms J filed 27 April 2018;
(d)an affidavit Ms S Lucas filed 27 April 2018;
(e)an affidavit of Mr T Lucas filed 27 April 2018;
(f)an affidavit of Ms B dated 8 May 2018, the paternal great-aunt; and
(g)an affidavit of Dr U dated 15 May 2018, the father’s medical practitioner.
The father also tendered a bundle of books comprising of two volumes.
The mother relied on the following documents:-
(a)an amended response to initiating application filed 14 May 2018,
(b)her affidavits filed 11 May 2018 and 24 October 2018;
(c)an affidavit of Ms D filed 10 May 2018; and
(d)an affidavit of Mr G filed 11 May 2018.
The maternal grandparents relied on the following documents:-
(a)affidavits by maternal grandfather filed 10 and 27 April 2018, 31 October 2018;
(b)affidavits of maternal grandmother filed 27 April 2018 and 30 October 2018;
(c)joint affidavit of maternal grandparents filed 1 February 2018; and
(d)an affidavit of child’s maternal aunt, Ms E Wragge, filed 1 May 2018.
The Independent Children’s Lawyer relied on the following documents:-
(a)Child Dispute Memorandum prepared by Ms Q dated 2 June 2017;
(b)Child Inclusive Memorandum prepared by Ms Q dated 6 October 2017;
(c)Child Responsive Program Memorandum prepared by Ms Q dated 30 January 2018;
(d)Family Report of Ms V dated 20 April 2018;
(e)Response to Section 67ZA Notification;
(f)Report to Ms W, Child Protection Case Worker dated 2 February 2018;
(g)Report from Ms Y, Psychologist dated 31 January 2018;
(h)Undertaking from Ms Wragge dated 30 January 2018;
(i)Affidavit of Mr Z sworn 20 October 2017;
(j)Affidavit of Ms AA sworn 31 October 2017; and
(k)Single Expert Report of Dr L dated 15 August 2018.
The Independent Children’s Lawyer, the father, the mother and maternal grandparents each filed case outlines.[6] The case outlines are in evidence as to what the parties submitted but are not evidence of the facts asserted in them except, where the chronologies are consistent.
[6] Exhibit E8 (ICL’s case outline), Exhibit E9 (father’s case summary), Exhibit E10 (mother’s case outline) and Exhibit E11 (maternal grandparents).
Also tendered were the annexures to the maternal grandfather’s affidavit,[7] the exhibits to the maternal grandmother’s affidavit[8] and the exhibits to the mother’s affidavit.[9]
[7] Exhibit E14.
[8] Exhibit E15.
[9] Exhibit E16.
The Child Dispute Conference Memorandum dated 2 June 2017, the Child Inclusive Conference Memorandum dated 6 October 2017 and the Child Responsive Program dated 30 January 2018 were tendered.[10] The Family Report dated 20 April 2018 was also tendered.[11]
[10] Exhibit E18.
[11] Exhibit E17.
Dr U
The father filed an affidavit by Dr U on 16 May 2018. Exhibited to that affidavit was a report from Dr U dated 14 May 2018.[12]
[12] Exhibit E13.
The evidence of Dr U was admitted without controversy and neither counsel for the mother, the paternal grandparents or the Independent Children’s Lawyer sought to cross-examine Dr U.
In his report Dr U said he had undertaken a liver function test which showed the father had a fatty liver which was significant given the weight of the father. Since that time the father has reduced his weight slightly and his liver function test has improved and normalised.
Dr U observed of the father:-[13]
…There is no clinical evidence of chronic alcoholic liver disease, and his normal liver function test exclude excessive alcohol consumption …
Clinically [the father] has no evidence of chronic alcoholic liver disease, no evidence of hepatomegaly and there are no peripheral stigmata of alcoholic liver disease. …
[13] Ibid.
The father has undertaken three such tests.
I accept that evidence and I have taken it into account.
The father
The father gave evidence in terms of the affidavits upon which he relied. The father provided a tender bundle.[14]
[14] Exhibit E12.
He gave oral evidence in chief denying that he spent significant time in his business. He denied that he engaged in heavy drinking and/or extensive gambling after work. He denied that he was violent to the mother or the elder child as alleged. The father denied that he walked around the house naked as asserted by the mother.
He acknowledged the email from his mother on 29 October 2012.[15]
[15] Exhibit E16 pages 12 and 13.
He was cross-examined in relation to this, which on the surface seemed quite a pleasant and conciliatory email.
The father conceded that he was working long hours in 2012 and he acknowledged that the mother asked him to drink less over that period of time.
I accept his evidence that he now drinks alcohol less frequently.
The father was cross-examined in relation to his expenditure on gambling and alcohol as shown from his bank records from July 2015 until July 2017.
He said that during the relationship money was not a source of tension, but it was a concern of the parties whatever that means. He said that he and the mother had wanted to move to Hobart to buy their own home, as the cost of housing in Hobart was more affordable than in Sydney.
He said he had been in arrears of rent for one property at Suburb DD, but it was far less than the $5,000 that was asserted.
The father was not aware of the issues regarding the younger child which were referred to in a plan provided by a general practitioner.[16]
[16] Exhibit E20.
It was put to him that the mother’s mental well-being had improved in November 2018 and the father said that whilst that was the view of Ms Y, the mother’s psychologist,[17] that was not his experience of the mother at that time.
[17] Exhibit E21.
It was the father’s case that the parties’ relationship was in difficulty and they came to Tasmania in early 2017 to find accommodation. He said that when the mother came down to Tasmania from time to time he normally tried to provide accommodation for her, but on one occasion he was not able to do so.
In terms of the maternal grandparents, the father conceded in cross-examination that he had no serious concern for the well-being of the two children in their care. He confirmed this in the light of the evidence that the maternal grandparents are likely to secure an apartment for the mother for at least six months and that they had no intention of allowing the mother to re-occupy their home and would not allow her to re-occupy their home.
This would also be on the basis that the maternal grandparents had no intention of allowing the mother unsupervised contact with the children without order of the Court.
The father has limited concerns that the maternal grandparents would not preserve his relationship with the children. He said that they had refused his offer of child support and provided little feedback to him about the life of the younger child. The communication between the maternal grandparents and the father was poor and often through on of the mother’s sisters.
The father was very concerned in relation to the maternal grandparents in a number of other areas.
He did not believe that they were sufficiently concerned about the mother’s mental health and the impact of that upon her parenting. In that regard the maternal grandparents said to the Ms V that they proposed that the younger child live with them until the mother is in better mental health at which time, the younger child would then live with her. I am satisfied that this was and perhaps is the view of the maternal grandfather, but it is not the view of the maternal grandmother.[18] Later in the report[19] it is said that it seemed evident that the maternal grandparents believe they are best placed to know when their daughter is well enough to care for the younger child. In that regard the maternal grandfather sees the mother through ‘rose coloured glasses’ but the more realistic view of the mother and her behaviour and heath is that of the maternal grandmother, about which I have discussed elsewhere in these reasons. As such the father’s concerns about the maternal grandparents are reasonably based.
[18] Exhibit E17 Family Report paragraph 9.
[19] Ibid paragraph 49.
Similarly the father was concerned that the maternal grandparents may allow the younger child to have unsupervised time with the mother. He was concerned that the maternal grandparents were ‘surrogates’ of the mother, and provided her health improved the younger child would be returned to her. That is a reasoned and valid concern about which I considered in this determination. In that regard the maternal grandmother is far more sceptical about that occurring and is much more insightful in terms of the mother’s mental health and her manipulation of the maternal grandfather. The father believed that at least in the medium or long term that the younger child would be better off in his care.
The father is not sanguine about the protection provided by the maternal grandparents in respect of the younger child during late 2017 and early 2018.
The father was cross-examined in relation to his concerns that the maternal grandparents may not be able to manage the mother. This was set out at paragraph 37 of the Family Report:-
37. [The father] presented his information in a clear and calm manner. [The father] believes that the maternal grandparents “mean well… they are good people” in relation to their application to care for [the child]. However he expressed concerns that the grandparents are not consistently able to manage volatile behaviour of [the mother] in [the child’s] presence and they could be misguided in forming a future belief that their daughter is well enough to care for [the child].
The father made it clear that whilst he was prepared to care for the elder child he made a conscious and considered decision not to seek parenting orders in relation to her.
He confirmed what he said to Ms V the family consultant:-[20]
13. [The mother’s] alleged threats that she would commit suicide.
[20] Ibid paragraph 13.
The first time the father had the sole full time care of the two children following separation in late March 2017 was for the one to two weeks in about January 2018. The father conceded the comment made by him in the Child Responsive Memorandum of 30 January 2018 where he said:-[21]
… he is not seeking that [the elder child] live with him. He stated that if the authorities decided that [the elder child] should be placed in alterative cate, he may revaluate (sic) whether he can offer [the elder child] care. He said he is aware of the problems for both children of them being separated but defined himself as “not [the elder child]’s father”, as if to say that [the elder child]’s well-being is not his responsibility.
[21] Exhibit E18 Child Responsive Memorandum dated 30 January 2018.
When the matter came back to Court in November 2018 the father relied on a further affidavit filed 30 October 2018. In that affidavit he provided evidence of his time with the younger child. In addition he provided some information regarding his personal circumstances, which are that he is now a manager. He also disclosed that he had been doing some additional part time work for the last twelve months or so.
The father also set out information in relation to email communication with the maternal grandparents and his interaction with the younger child’s school.
The father complained in his later affidavit that the younger child was not able to have sleepovers with her peers while in the care of the maternal grandparents. I have dealt with that later in these reasons. He provided evidence of his personal circumstances.
What is troubling is that in the earlier hearing the father made it clear that he would be staying almost indefinitely at his parents’ home if the younger child came into his care. When cross-examined in the November 2018 hearing he said he would be remaining at his parents’ home for six weeks to six months. Accordingly, I am left with the circumstances where he will be living close to his parents, but he and the younger child will be living in a separate home.
When cross-examined by senior counsel for the maternal grandparents, the father was asked why he had not travelled to Sydney to spend time with the children. The father provided a considered and sensible explanation in answer to that question in that he was not anxious to go to Sydney as he wanted to spend his holiday leave with the younger child in Tasmania.
He was pressed as to whether he really wanted the elder child to attend the holiday events. The father made it clear that he did, but did not wish to unnecessarily press the issue. He said in evidence that the younger child was thriving and happy.
The father was cross-examined as to his knowledge that the maternal grandfather does not communicate by emails or text messages. The father acknowledged this, but said that all of the emails went to the maternal grandmother.
The father had no issue with the evidence of the single expert in relation to the material the father provided to him.
The father has been in contact with the younger child’s teacher. There is a level of exaggeration by him in terms of some issues regarding the younger child’s education. She is clearly thriving at the school she is attending.
In terms of the younger child’s interaction with the elder child if the younger child were to live with him, the father said that he would try and manage that through FaceTime and would arrange for the younger child to see her sister during school holidays.
The father conceded that the two children had a close sibling relationship. This was set out in the Family Report at paragraph 55, which says in full:-
[The father] volunteered that [the children] have a close sibling relationship. However, [the father] spoke about the age gap between the girls and his understanding that [the elder child] has played a “mothering role” to [the younger child] that could be more appropriately undertaken by a parent. He believes that as [the elder child] becomes a teenager, she will increasingly pursue activities independent of [the younger child] and her family generally. [The father] spoke kindly about [the elder child]; he made practical suggestions about how the sibling relationship could be maintained in the event that the girls do not live together. [The father] reported that in January 2018 he had willingly cared for [the elder child] at the request of Child Safety Services when [the elder child] was present at the time that [the younger child] was returned to his care subject to the recovery order.
In that respect I note that the father says he undertakes the care of the younger child during the time and that he has the opportunity of reducing his work hours. He proposes, at least for the foreseeable future, to live with his parents where the rent is modest; he pays $100 per week rent and perhaps $100 a week towards food.
The father gave some description of the chaotic events following their departure from their rented property in about October 2016. They lived in the EE area and in P Town. He said that the elder child was left with the maternal grandparents and the mother took the younger child. He said they spent two or three nights in motels.
On 6 January 2017 father and mother moved to Tasmania to live with the paternal grandparents whilst they arranged their own accommodation. They were to be there for a period of time, then housesit at a home of a sibling, then shared the home with the paternal grandparents and then went overseas for a few months.
The father was cross-examined in relation to an incident on about 24 January 2018 when arrangements were made for the urgent return of the elder child to the care of the maternal grandparents. The paternal grandmother expressed concerns about the level of physical maturity of the elder child and the father said that this was in the light of the false allegations made by the mother which had been consistent for some time.
The father gave evidence that he lost a lot of money in the business in Suburb DD, including a bond of about $60,000 which was provided by his parents. He conceded that there were funds paid by the maternal grandparents, but there is an issue as to the quantum of those funds.
The father was cross-examined as to the level of support he provided for the younger child. Since she has returned to the care of the maternal grandparents he has not offered money on the basis that he believed the maternal grandfather would not accept it. He prevaricated in answers in this respect.
The father conceded that there were no difficulties with telephone calls to the younger child, although he said he was endeavouring to organise Skype or FaceTime, but this had not worked so far.
Given all of the evidence, I am satisfied that the maternal grandparents have facilitated the father’s time with the younger child and that they are likely to do so in the future.
The father has not sought time with the children in Sydney given that he does not have the availability of supervision as he does in Hobart.
The father was cross-examined in relation to his level of alcohol use. His evidence was that it was moderate down to nil, and now he occasionally has a drink, perhaps one or two glasses a week or a fortnight.
He was cross-examined in relation to statements made by others and did not change his evidence. He conceded that he was drinking a bottle of wine four nights per week when he spoke to the family consultant in June 2017.[22]
[22] Exhibit E18.
Given the level of his answers to these questions and the purchases from the bottle shop I am satisfied that the father has, at some levels, understated his alcohol use.
The father was cross-examined in relation to his hobby of gambling. Given the material before the Court it is clear that the father has been a regular user of gambling facilities and has at times gambled significant funds, such as in November 2017.
I have had regard to the bank statements and the analysis in the relevant exhibits being Exhibit E23 and Exhibit E24.
In terms of separation, he said the mother asserts it occurs in November 2016. The father denies this and says that while the relationship was not good it continued until about 21 March 2017. The father said he and the mother travelled to Tasmania on 6 January and shortly after that time the mother returned to New South Wales to collect a car and personal possessions. He said it was only after she went back that he started receiving calls and messages about her concerns about being in Tasmania.
The father denied that he was ever threatening; he said he was always gentle.
As to the father’s time with the elder child, he said that she would spend sometimes two or more nights per week with the paternal grandparents and that they were fantastic for the younger child. He said that the paternal grandparents shielded the elder child from the stressors of the mother and father’s arguments.
He denied that the younger child spent significant time with the paternal grandparents, although said she spent regular time with the maternal grandparents.
The mother returned to Tasmania on about 18 March 2013 then left again on 27 March 2013. The father commenced proceedings in the meantime and then on the advice of a solicitor sent a letter asking her not to take the children out of the State. The father and mother had enrolled the children in schools but the mother prevaricated in terms of school uniforms and the like.
The mother travelled up and down from P Town on a number of occasions and eventually arrived in Hobart on about 17 or 18 April 2013. There was an issue as to whether she notified the father. The father said the mother was more concerned about reconciliation and that he said he would contemplate it provided she had proper psychiatric and psychological assessment and treatment.
The mother left Tasmania on 26 April 2017. At that time she was begging for reconciliation. At that time the father did not believe the children were at risk, notwithstanding having filed the Notice of Risk. On 29 and 30 April 2017 the father said the mother returned with the children and it was during that time that she threatened to drive into a power pole.
The father said the mother had often threatened to harm herself by way of coercion or manipulation, but as 2017 progressed the father said that because of the volume and nature of text messages he received from the mother he was concerned that there may be some substance to them.
In the first part of 2017, after separation, when the children were presented to him they presented as being hungry and not well groomed. He said that the younger child seemed emotionally ‘needy’ and her behaviour had regressed. She seemed unsettled. He said this was because of the long drives, inadequate housing and inability to attend school.
The father said after the orders were made in the Federal Circuit Court in June 2017 the children’s attendance at school became more regular and his concerns in that regard diminished, although he said that the mother seemed to become more erratic and more impulsive.
When the father spoke to Ms Q in June 2017, he said residence was not in dispute, although his views changed over the next six months given the circumstances to which he alludes in his affidavit. The volume of text messages increased, as did the concerning nature of them.
After the orders were made the father did not see the children in the following school holidays and in the September school holidays. In the Child Inclusive Conference Memorandum of October 2017 the father expressed the view that he was considering whether the younger child should live with him. He was very concerned about the mother’s behaviour.
He had over the years raised issues concerning the children’s safety in the mother’s care with Child Protection in both New South Wales and in Tasmania.
In November 2017 Judge Baker of the Federal Circuit Court ordered that the younger child live with the maternal grandparents, attend school and made other protective orders. The father was concerned, given the facts and circumstances quite appropriately, that the mother was not going to obey those orders.
In paragraph 17 of the Child Inclusive Conference Memorandum of February 2018 Ms Q, the family consultant, observed the condition of the younger child and said that she did not appear to be coached or apprised of the details of the dispute. The father did not see the younger child as being sad or quiet, although he said she was clinging to him.
The father described the mother’s texting over December 2017 as relentless and said that he was concerned that the maternal grandparents would not be able to protect the younger child from the mother. That concern continues. The father does not accept that the maternal grandparents can stand up to their daughter.
However, the father concedes that they are likely to be more vigilant following the events of 2017 and January 2018.
The father is content that the maternal grandparents enable him to spend time with the children and that their promotion of the relationship is genuine and not fabricated. He would be concerned about the mother spending time with the children if she was not supervised.
In terms of parental responsibility, the father says that he could work with the maternal grandparents, but would not be able to work with the mother. I accept that evidence.
The father’s evidence was not overly compromised, except I am satisfied he has understated the extent of arguments between he and the mother, his drinking of alcohol and gambling when he and the mother cohabited, and the extent of time he spent at work. His evidence otherwise generally reliable, but coloured by his partisan views of his own case.
Maternal grandfather
The maternal grandfather, who is now aged 65, provided evidence in his affidavit of 27 April 2018 and his up to date affidavit of 30 October 2018. He is a tradesman and he lives in a southern suburb of Sydney.
In his affidavit of 27 April 2018 he sets out his personal information, including his relationship with the maternal grandmother and the wider family support available to them in the care of the children
He provides a background of his and his wife's involvement in the care of the elder child, which included financial and practical assistance while the mother and the elder child’s father were in a relationship. Once that relationship ended the maternal grandparents’ support of the mother continued and increased. The wider maternal family also assisted in taking the elder child to activities such as swimming.
Following the commencement of the relationship between the mother and the father and the birth of the younger child in 2011, the maternal grandfather asserts that the maternal grandparents paid the bond and advanced rent on a number of properties in which they lived. Further that, on occasion, they assisted in arranging the moving of furniture and the repair of the rental properties. His evidence is also that he at times paid the electricity bills and gave the mother and the father money to meet expenses. I accept that evidence as reliable.
On the maternal grandfather’s affidavit evidence, the maternal grandparents have significantly assisted the mother in the care of the children since separation. When the mother and the children were residing with them they were involved in arranging and funding the children’s schooling, assisting with school drop off and pick up, and taking the children to church with them on Sundays. I accept that evidence as reliable.
The maternal grandfather also gives evidence of the close relationship between the children. He observed that the elder child has taken a ‘mothering role’[23] toward the younger child, and if they are separated the children will miss each other; he is concerned about the social and emotional impact if the younger child resides with the father in Tasmania.
[23] Paragraph 246 of the maternal grandfather’s affidavit filed 27 April 2018.
The maternal grandfather details the mother’s movements with the children after the relationship between the mother and father ceased as follows:-
·Late 2016 the father relocated to Tasmania while the mother and the children moved in with the maternal grandparents.
·March 2017 the mother relocated herself and the children to P Town without advising the maternal grandparents in advance.
·The mother then travelled to Tasmania in March 2018 to again attempt to reconcile with the father. She returned to New South Wales before the end of March 2018 and said to the maternal grandfather word to the effect, “[The father] and I cannot make it work. I am going to stay in Sydney and live with you for now”.[24]
·July 2017 to October 2017 the mother resided in P Town.
·October 2017 the mother relocated back to Sydney, and she and the children resumed living in the maternal grandparents’ home. Subsequently in November 2017 orders were made that she remain residing there.
·November 2017 the mother and the children spent significant time at a property in Suburb FF, but the maternal grandfather still considered them to be living at the maternal grandparents’ home rather than the Suburb FF address.
·As of the time of the recovery order made by this Court in December 2017 the maternal grandfather was unaware of the precise location of the mother and children; he was in communication with her and encouraged her to return.
·On 17 January 2018 the children were recovered pursuant to that order and were removed from the care of the mother to the care of the father in Tasmania.
·On 30 January the children again lived with the mother in the maternal grandparents’ home pursuant to interim orders made by this Court.
[24] Paragraph 71.
In his affidavit the maternal grandfather gives evidence of the mother’s desire to reconcile with the father and of the mother’s ‘extreme distress’[25] concerning the end of her relationship when she was residing with the maternal grandparents in 2016. In response to this the maternal grandparents assisted the mother with her travel to Tasmania in January 2017 when she hoped to bring about such a reconciliation. It is also his understanding that the mother travelled to Tasmania in March 2018 for the same purpose. The mother told the maternal grandfather that the paternal grandmother was the reason which they could not reconcile. He sets out his response to this allegation at paragraph 186 of his affidavit:-[26]
I have tried to explain to [the mother] that the relationship is over with [the father] and that her [sic] and [the father] are adults who are capable of making their own decisions and that [the paternal grandmother] is not to blame. [The mother] refuses to agree with me on this.
[25] Paragraph 61.
[26] Filed 27 April 2018.
It is the maternal grandfather’s understanding that she has a support network in P Town from when she was studying at university and that the P Town area is also where the elder child’s paternal family resides; this is why the mother has returned there twice with the children. He reports that when the mother moved to P Town in July 2017 he did not have concerns for the mother’s mental state or for her care of the children, and that in fact she was initially happy and settled there. However, this did not last. The maternal grandfather deposes:- [27]
…I became aware that the situation between [the mother], [the father] and his family was starting to spiral out of control and was having a significant impact upon [the mother]. [The mother] called me most days, upset and frustrated. …
[27] Paragraph 91 of his affidavit filed 27 April 2018.
In September/October 2017, at around the time of the Child Responsive Program interviews, the maternal grandfather encouraged the mother to relocated back to the maternal grandparents’ home with the children in a conversation which he recounts at paragraph 97:-
[The mother] did not know what to do. She called me around September 2017 and said, words to the effect, “Dad I don’t know what to do. They won’t leave me alone. It’s too stressful. I want to stay here but they won’t leave me alone”. I said, words to the effect, “Come home and get the kids back into school here. We will help you”… [original emphasis]
Shortly after that the mother did relocate back to the maternal grandparents’ home with the children, and the maternal grandfather states that he was aware that under an interim order made in November 2017 she was to remain residing there. He was also aware that if the mother were to leave with the children the maternal grandparents had to inform the Independent Children’s Lawyer.
As I have noted, the maternal grandfather did not consider that the mother travelling to Suburb FF constituted a change of address as on his evidence she and the children returned to the maternal grandparents’ home each night.
The maternal grandfather did not have concerns about the mother’s mental health during the relationship between the mother and the father, and similarly he was not concerned about her ability to care for the children. At the time of composing the affidavit his apprehension was that the mother did “not admit to herself that she has any mental health issue.”[28]
[28] Ibid paragraph 183.
On the maternal grandfather’s account, the mother disclosed to him in March 2018 that the father had sexually and physically abused her and he encouraged her to report it to the police. Prior to this in January 2017 the mother reported to the maternal grandfather that the father had sent a photograph of a naked man to the elder child’s mobile telephone. This it seems arises out of a photograph sent of the husband’s present employer in a state of undress. It seemed to me to be a minor mater of little consequence.
As to the father’s use of alcohol, the maternal grandfather recounts several instances where the mother made comment to him regarding the father’s use of alcohol indicating that it was problematic, including statements by the mother such as:-
please don’t give [the father] any alcohol.[29] [original emphasis]
And:-
Dad, [the father] drinks too much.[30] [original emphasis]
[29] Paragraph 190.
[30] Paragraph 191.
He acknowledges that while he witnessed the father drink alcohol at family functions he himself never observed the father in a highly intoxicated state.
At the time of deposing the affidavit, the maternal grandfather stated his concerns about the children spending unsupervised time with the father.
In his affidavit of 30 October 2018 the maternal grandfather provided at times contradictory evidence. The first example of this was his expression that the younger child was nervous prior to her first trip and was reserved when she returned.[31] Yet in later evidence the maternal grandfather said that the younger child was up early in the morning and was singing and was happy. He was quite impressed by her.
[31] Paragraph 9 of his affidavit filed 30 October 2018.
The maternal grandfather commented that there were few calls from the younger child to the elder child over the school holiday period (that was a legitimate complaint) and that the elder child had ‘missed [the younger child]’ when she had been away. That seems at some levels incongruous with his evidence that the elder child did not wish to go to Tasmania.
The maternal grandfather provided evidence that he had little contact with the mother after March 2018. He said he was contacted by a counselling agency and was invited to have some counselling with the mother. He has had two sessions in that regard and he says it was positive. In addition, he has arranged for the children to meet with the mother on a number of occasions and said that this is going well although it is somewhat constrained.
The maternal grandfather said he would provide financial assistance to the mother to provide accommodation and would have her back in his house if the Court allows it. I am troubled by this view because there is significant information in the emails that this has not worked in terms of the mother and the maternal grandmother and there were allegations that the mother was asked to leave.[32]
[32] Exhibit E12.
The maternal grandfather gave evidence about the telephone call and communication between the younger child and himself, noting that they had facilitated those calls. He noted that his daughter, Ms E, had been sending information, but neither he nor the maternal grandmother have been sending any meaningful information to the father in respect of the younger child.
The evidence of the maternal grandfather was troubling. He seemed to see his daughter, the mother, uncritically. He made few admissions as to the text messages even when they were brought to his attention and referred to them as ‘silly’. He understated the expressions of his daughter in terms of self-harm when she came to the notice of the police in June 2018.
The maternal grandfather seems remote from and at some levels dismissive of the father. He expresses the rhetoric of the importance of the father’s relationship with the younger child, but that does not seem to be borne out in the reality of the younger child’s life.
The maternal grandfather struggled even to acknowledge that 2017 must have been a dreadful year for both of the children. It is significant that the maternal grandfather gave assurances to the Court that he would care for the children and ensure that they were protected from the mother when orders were made in early December 2017. He did not do so and as a result the children disappeared for a significant period of time and it was difficult for a recovery order to be enforced.
When asked about the text messages sent by the mother the maternal grandfather said that he had not read the text messages and said that he never would. He said they were a mistake and they are sad. He gave evidence that at one stage he endeavoured to break the mother’s telephone, which he had acquired or was owned by him, to stop the text messaging because he saw the texting as the problem. The maternal grandfather did not see the mother’s underlying psychological or psychiatric issues as a problem.
The maternal grandfather seemed to easily forgive his daughter for her behaviour in respect of his grandchildren.
His approach to the mother was troubling. She endeavoured to remove the children from his care in about March 2018[33] and the mother asserted that he held her in a head lock for ten minutes. When pressed he finally conceded that this was another example of the mother’s ‘silliness’. It was not ‘silliness’, it was clear that the mother has told lies and continues to tell lies.
[33] Exhibit E29.
The maternal grandfather was referred to Exhibit E12 and he was shown a series of troubling text messages by the mother about him allegedly kicking the mother out of the house, allegations that the maternal grandmother screams and yells at the mother all day and packed her bags, and the mother’s assertion that her earlier eating disorders were caused by the maternal grandmother and so on.[34] He showed little insight as to the concerning nature of these assertions by the mother.
[34] Exhibit E12 pages 52, 57, 58, 468, 529, 531 and 533.
The maternal grandfather’s evidence was unreliable when he asserted that he and the maternal grandmother undertook the day to day care of the children on a 50/50 basis. That was clearly not the case, given that the maternal grandfather worked as a tradesman and the clear evidence of the maternal grandmother (which I accept) is that she did most of the parenting of these children.
The maternal grandfather gave evidence about the mother returning to live in the house with the maternal grandparents and said that he would try to ‘make it work’. When asked about to what the children would be exposed to, he said ‘I don’t know’. That is troubling in terms of the children.
The maternal grandfather gave evidence, as did the maternal grandmother, that the elder child spent more time with them than did the younger child.
When pressed on questions in cross-examination the maternal grandfather often said he could not remember. I do not accept that was the case. I accept that when difficult questions were asked he would defer, deflect or obfuscate or simply use the words ‘I can’t remember’.
He was unable accept how bad the environment in the home was when the mother was living there in the later part of 2017.
He says, and I accept, that the elder child has settled into year 7 at high school in Sydney and is managing well in that respect.
I am concerned about the reliability of the evidence of the maternal grandfather. I am not satisfied that he always endeavours to tell the truth; I am satisfied he endeavours to colour things the way that he thinks they ought to be. I have treated his evidence with great caution.
The maternal grandmother
The maternal grandmother was born in 1956. She is not in paid employment and undertakes the onerous task of bringing up the children. Her affidavits of 27 April 2018 and 30 October 2018 were read into evidence without objection, but subject to weight.
She was not present in court for most of the time when the maternal grandfather gave evidence.
The maternal grandmother was cross-examined by counsel for the mother, counsel for the father and the Independent Children’s Lawyer.
In about March 2018 she became the primary carer of the younger child and has not had any meaningful contact with the mother since that time. The mother said that she and the father were not welcome to communicate and the maternal grandmother has accepted that. The maternal grandmother was not invited to participate in the counselling organised between the mother and the maternal grandfather. She explained this was because she and the mother had a volatile relationship, much more so than the relationship between the mother and the maternal grandfather.
The maternal grandmother gave evidence that she was the primary carer of the younger child and I accept that evidence.
The maternal grandmother has not read all of the emails and evidence. She has avoided reading many of them, although she has read some of them.
She gave evidence about the almost cursory invitation to the elder child to go to Tasmania. She gave evidence of the limited information provided to the father and, like the maternal grandfather, seemed to treat the father as an aside.
The maternal grandmother gave initial evidence that her relationship with the mother was close and loving, although said it was difficult in recent years. She was taken to page 8 of the single expert report and was cross-examined about the mother’s view that the maternal grandmother blamed the mother for the mother’s eating disorder. The maternal grandmother said that she did not recall saying this, but it was possible that she had.
She was taken to Exhibit E36, which is a document of the text messages between the mother and maternal grandmother. The maternal grandmother explained these text messages by saying that she had a mobile telephone, but said she did not use the text message system much. The Exhibit showed some nice photographs sent to the maternal grandmother in 2017. It also contains a number of ‘hang up messages’. I do not understand the nature of those messages and I have given them no weight.
There are a series of text messages between 28 January 2018 and 1 February 2018[35] containing belligerent and abusive messages from the mother to the maternal grandmother. The maternal grandmother was being bullied. At the same time the maternal grandmother was trying to persuade the mother to step up so that they could succeed in the case which was to be before me shortly after those messages.
[35] Exhibit E36 pages 11 to 14.
The evidence was that they were often in bed together each morning, and that they wish to be involved in each other’s sporting activities. It is a close bond.
There is a difference in their age and maturity. The younger child has just turned seven and is in primary school. The elder child is in high school and is about to turn attain the age of 13. Their relationship will change over the years.
The impact on this relationship is one of the significant issues in this case.
Section 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;
There was some mild criticism of the father in relation to his relationship with the elder child. I reject that criticism. The father has sensibly had regard to the age and maturity of the elder child and her close connection with the maternal grandparents. It is in that context that the father decided not to seek orders in relation to the elder child. It was, and I accept, a child focused decision.
The mother did not actively seek to spend time with the children between March 2018 and August 2018. Since then she has spent time with the children with professional supervisors whose fees have been paid by the maternal grandfather.
From the father’s point of view he wished to spend time with the younger child and I accept that he has been communicating with the younger child. At the same time he has endeavoured to communicate with the elder child, but with limited success.
The father had made decisions in relation to the younger child , although this has been somewhat circumscribed in the last two years as a consequence of the conflict between the parties and these proceedings and the interim orders that have been made from time to time.
The mother clearly wants the children to live with her and she wishes to, after a certain period of time, take over the role of making decisions for them. I have had regard to her approaches in terms of these proceedings.
Section 60CC(3)(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;
The father provided for the younger child during cohabitation. I am satisfied that the parties were, to some extent, assisted by the maternal grandparents. I accept the father’s evidence that he has spent about $15,700 on the care of the younger child or the mother as set out in paragraph 237 of his trial affidavit.
In addition he has offered money to the maternal grandparents, who have not accepted it, and has paid money into an account for the younger child.[68] I am satisfied that the father has fulfilled his financial obligations in terms of the younger child.
[68] Exhibit E31 page 6.
The mother’s health has not permitted her to provide for the children and she looks to the maternal grandparents, particularly the maternal grandfather, to support her. He is currently paying the mother some sort of an allowance and paying rent on the property in which she is living.
The maternal grandfather has offered to pay rent on an apartment in the Suburb DD/Suburb O area for the mother so that it makes it easier for her to see the children in a supervised fashion.
Section 60CC(3)(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;
This is again one of the cruxes of these proceedings. Given the circumstances relating to the mother the substantial dispute is between the maternal grandparents and the father. If the younger child is left in the primary care of the maternal grandparents it will mean that the father and the younger child do not experience the day to day activities of going to school, making lunch and the like, all of which provide the substance and fabric in the care of a child.
The father is young, healthy and anxious to resume the role of primary carer, albeit that he is currently separated from the younger child. I am satisfied that he can manage that living alone provided he is in close proximity of his parents and with the assistance of his parents in the background or living in his parents’ home.
If the younger child lives with the father she will not live on a day to day basis with the elder child. The effect of that will be to impact on that close and consistent relationship that has existed between the children for all of the younger child’s life. For the children they will not be able to see each other of a morning, see each other after school (they go to different schools), attend each other’s sporting events and cheer each other on. They will not be able to play on a daily basis. I am satisfied that this is likely to have some detrimental impact on both the children.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Irrespective of the decision made in this case there will be distance between the younger child and her father or between the younger child and the elder child and maternal grandparents.
The father is in employment and is in fact undertaking some additional part-time work. I am satisfied that the father and grandparents have sufficient means to facilitate an exchange of the children between them.
The mother is reliant upon funds from the father and she has a consistent history of receiving such funds.
Section 60CC(3)(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 am satisfied that the father has the capacity to meet the younger child’s needs including her emotional and intellectual needs.
I am satisfied that the maternal grandparents have the capacity to meet the younger child’s needs, including her emotional and intellectual needs.
There was some suggestion by the single expert that a working parent could not meet these capacities. I reject that notion and accept the evidence of Ms V in that respect.
I am satisfied that the mother does not have the capacity to meet the younger child’s emotional and intellectual needs given the findings that I have made elsewhere in these reasons.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The ages of these children is a significant feature to which I have had regard. The younger child is aged seven and the elder child is aged 12 soon to turn 13.
The elder child is at the beginnings of her change from a child to a young woman. The changes to her life over the next five years will be profound. The younger child is still enjoying her childhood and is likely to do so for the next four to five years.
It is likely that as the elder child becomes older that she will eventually begin to focus a little more on her friends and social life than on the younger child. I am satisfied that the children will continue to maintain a close and loving relationship over the medium term.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
The father is of part Aboriginal decent on the paternal side of his family. It was not argued as a significant feature in this case and, in any event, the father will be able to engage the younger child in his culture if he wishes to do so irrespective of the outcome.
The proposed orders will have no significant effect on that right.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I make no criticism of the father in this respect. He has endeavoured to take care of the younger child and to engage with the younger child as much as is possible. I repeat the comments I have made about the mother. In many ways she has failed in her responsibilities, particularly over the last two years with the vile text messages, engaging the children in the conflict and a litany of other examples which are set out in these reasons.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
I have described the verbal violence and the texts by the mother which are, in my view, violent. I am not satisfied that the father was violent to the mother. I accept the father’s evidence that the mother was at times violent to him during the relationship.
I accept that the father and mother engaged in some awful arguments and exposed the children to those at least in 2016.
The mother has applied coercive and controlling behaviour to the father, members of her family and the father’s family. This included abusive text messages, derogatory thoughts, threatened harm, threatened suicide, and using the children as a device to achieve her desire for reconciliation. This behaviour is continuing.
It is significant to note that on 25 or 29 September 2018 the mother text messaged the father, a process which needs thought and application. The text contained a photograph of the mother the children and accompanying text which read:-[69]
This was yesterday, your evil narcissistic psychopath mother will never get my children and she won’t break me. I am strong now and happy and so are my girls PLEASE GO AWAY and leave me and my girls alone. You are an evil NARCISIST inherited from your mother.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
[69] Exhibit E31 page 12.
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
This was not the subject of submissions.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Unfortunately, irrespective of the outcome, there are likely to be further proceedings in particular as to times that the younger child spends with the mother and in terms of supervision.
Neither of the reasonably available options can exclude the possibility of the need to come back to Court.
Further, if the mother seeks unsupervised time, rather than leave the mother to coerce or blackmail the maternal grandparents it seems to me that she should need the consent of the Court to offer protection to the maternal grandparents.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;
I have considered all of the relevant facts and circumstances individually and collectively
DISCUSSION and CONCLUSION
Parental responsibility cannot reasonably be determined until the question of where the younger child lives is determined.
Given the health and behaviour of the mother over the last two years or so, the detail of which I have set out earlier, she is not a serious candidate for a residence order for either of the children. She exposes the children to the risk of abuse, violence and neglect.
It is not appropriate that she live in the same home as the children. The need for supervision will be in the medium or long term and unsupervised time will need careful consideration.
If the children are allowed back into the care of the mother there is no way that the father will have a meaningful relationship with the younger child. The mother will do all that she can to prevent any such action.
In terms of where the younger child should reside, this was essentially between the father and the maternal grandparents. It was the finest of fine decisions. I have concluded that the younger child should live primarily with the maternal grandparents, a significant feature in coming to this determination was the desire not to separate the younger child from the elder child.
In making that decision I have had regard to the matters to which I referred to above and the following. I am satisfied of the younger child’s future stability in the care of the maternal grandparents given the orders that are put in place. I had concerns about the maternal grandparents’ ability to withstand the behaviour of the mother, however, the orders proposed by them and after seeing the maternal grandmother in the witness box and hearing the frank way she gave evidence I am satisfied with the assistance of court orders she will now be able to resist the extreme behaviour of the mother.
I am satisfied that the father, either living alone or with his parents, has the capacity to care for the younger child. I give no weight to the father’s current alcohol use or his limited gambling. Abuse of alcohol and gambling may well have been a factor during the parties’ relationship as the parties’ relationship broke down, but I am not satisfied that it is a factor of any weight at the present time.
I have had the opportunity of seeing all of the parties, observing their demeanour and listening to their evidence and the evidence of their witnesses. I have read all the material over eight days of hearing. I am not that convinced that the children would cope particularly well with being separated from one another on a full time basis.
I am satisfied that it will have some form of significant impact on each of the children.
This is a particularly difficult parenting case in terms of where the younger child should primarily live. It needs to be seen in the shadow of the decision I made in regard to the elder child, that is, that she lives with the maternal grandparents and spends supervised time with the mother for the short to medium term.
I do not find that the father was violent as asserted by the mother.
It is worrying that the father proposes to move out of his parents’ home between six weeks and six months after this determination. His parents, in particular the paternal grandmother, are child focused and have the capacity to provide significant assistance. I am impressed by the paternal grandmother. I raised with counsel for the father as to whether I should make a requirement that he continue living with his parents the next three years.
The younger child would then be at least living with one of her parents and that is sensible given the provisions of s 60B of the Act and given that she will not be living with her mother.
The troubling part of such a decision would be that the younger child would be separated from the elder child for the first time in her life. I acknowledge and accept that the children are very close and that they interact with and are interested in each other. They cheer each other on at football, and they have a very, very close relationship
The problem with the maternal grandparents is that, at least on the maternal grandfather’s part, I believe that he sees it as a ‘holding action’ until the mother is ‘better’. He seems to believe that the mother can live with the maternal grandparents and the children into the future. I am satisfied that this would expose both the children to risk of physical and emotional and psychological harm. I am satisfied that the maternal grandfather has no insight or limited insight into that risk. He did stop the mother on one occasion in March 2018, however, prior to that he was complicit in putting the children back in the mother’s care notwithstanding his knowledge of the risk she posed to the children given the statements made by her in text messages and other electronic communications.
He undermined the maternal grandmother in terms of her desire to protect the children and I accept her evidence that he is likely to exert pressure on her to achieve an end that meets the needs of the mother and not the children.
I am concerned that the maternal grandfather will not encourage a relationship between the younger child and her father. They comply with the orders, however, there has been no meaningful impact of that in terms of provisional information, engaging with them on telephone calls; it is all done through the maternal aunt and the paternal grandmother.
There are some very good people in these families, however they have been at some levels sidelined. The maternal aunt is just terrific; her involvement in the life of the children and her love of the children is one of the shining lights of this case.
Similarly the role of the paternal grandmother is important. In 2017 she urged the maternal aunt and through her, the maternal grandparents, to take steps to remove the children from the care of the mother because of the chaotic and high risk life to which she exposed the children. I am satisfied that she would ensure that the children have a close relationship with the maternal grandparents.
The other very significant person in the life of these children is the maternal grandmother. She is a 65 year old woman who is struggling with the care of two young children. She undertakes 90 per cent of the work for the children and receives little credit for it.
She has been abused, demeaned and belittled by the mother and has been bullied by the mother and, I believe, the maternal grandfather.
There was criticism of her for not communicating with the paternal family. Given the pressures on her, the fact that she manages it all is a credit to her.
The children are happy and settled at school and happy and settled in their home relationships, however, they are at unacceptable risk of exposure to emotional, psychological and physical harm in the care of the mother through the blindness of the maternal grandfather and, I believe, through the mother’s and maternal grandfather’s pressure on the maternal grandmother.
I need to address that regarding parental responsibility. As I have said elsewhere in these reasons, there is no presumption giving the findings of violence that I have made.
However, on the evidence it is not in the best interest of either child to for the mother to have parental responsibility either now or sometime in the near or immediate future. To do so would simply lead to further conflict, further litigation and an inability to make decisions in relation to the care of the younger child. The mother is incapable of making sensible parenting decisions, and has been in that position for some years.
However, I am concerned that the maternal grandparents seek an order for sole parental responsibility to the exclusion of the father in respect of the younger child, albeit with a requirement to provide information.
If the younger child is living in Hobart with the father, the father should have sole parental responsibility and it was argued that it should be mirrored if the orders sought by the maternal grandparents are made.
However, if the younger child is living with the maternal grandparents the father should have significant say in long term issues in respect of the younger child. It should not be alone, but it should be in concert with one or both of the maternal grandparents.
I am concerned that the mother has significant influence over the maternal grandfather. He still funds her lifestyle and I am confident that he could be persuaded to allow the mother unsupervised time with the child and contrary to the views of the father.
The maternal grandmother has a much better and clearer understanding of the health of the mother and the risks she poses to the child in the mother’s unsupervised care.
Having regard to all of the facts and circumstances in this case and the need for the father to remain significantly involved in the care of the younger child, I am satisfied that there ought to be an order that the father and maternal grandmother have equal shared parental responsibility for the younger child.
In terms of the time the children spend with the mother the current position of supervised time, using the mother’s family should continue and should expand. However, the end of supervision should be, in terms of the younger child, with the consent of the father and in terms of the elder child by order of a Court exercising jurisdiction under the Act.
I raised with the parties’ legal representatives was whether the Court should consider an order pursuant to s 64(D) of the Act.
This provision was inserted to essentially enable parenting arrangements to be dynamic and to enable parents to agree to exchanges as their children grow and their needs change. The section provides:-
Parenting orders subject to later parenting plans
(1) Subject to subsection (2), a parenting order in relation to a child is taken to include a provision that the order is subject to a parenting plan that is:
(a)entered into subsequently by the child's parents; and
(b)agreed to, in writing, by any other person (other than the child) to whom the parenting order applies.
(2) The court may, in exceptional circumstances, include in a parenting order a provision that the parenting order, or a specified provision of the parenting order, may only be varied by a subsequent order of the court (and not by a parenting plan).
(3) Without limiting subsection (2), exceptional circumstances for the purposes of that subsection include the following:
(a)circumstances that give rise to a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(b)the existence of substantial evidence that one of the child's parents is likely to seek to use coercion or duress to gain the agreement of the other parent to a parenting plan.
In this case I have heard to evidence of the maternal grandparents and it is clear that at times the maternal grandfather has been unwilling and unable to stand up to the mother. Examples of this are the mother removing the child from his home in December 2017 and again from his care in early 2018. He has limited insight as to the risk the mother poses to this child in her peripatetic lifestyle and verbal violence perpetrated on the father and his family by the mother.
The maternal grandmother does see the mother in a far clearer way. I am concerned that with both the children pressure could be brought to bear on the maternal grandmother to consent to changes which meet the needs and concerns of the mother, but without sufficient regard to the children and their relationship.
To follow the path of the mother is likely to expose the children to physical or psychological harm and put them at risk of being subjected to, or exposed to, abuse, neglect or family violence physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence as they were for much of 2017. I reiterate and repeat the findings and statements I made earlier in these reasons.
Given those events , particularly in 2017 through to the hearing, I am satisfied that the mother may use coercion or duress to gain agreement of the maternal grandparents to put in place unsupervised care by way of formal or informal parenting plan. These are exceptional circumstances, such as, in my view, would warrant the making of an order pursuant to s 64D(2) of the Act unless the unsupervised time was agreed to by the father.
Consequently, I will so order.
I certify that the preceding five hundred and fifty-five (555) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on Tuesday 19 February 2019.
Associate:
Date: 19 February 2019
Key Legal Topics
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Family Law
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Civil Procedure
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