Mattick and Mattick and Anor
[2020] FCCA 437
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
MATTICK & MATTICK & ANOR [2020] FCCA 437
Catchwords:
FAMILY LAW – Parenting – children currently reside with the Maternal Grandparents – children have various levels of psychological vulnerability –– significant history of domestic violence and poor co-parenting relationship between the parents – orders for equal shared parental responsibility between Maternal Grandparents and the Mother – orders for children to remain in the care of the Maternal Grandparents and spend time with each of the parents – orders for the Father’s time with the children to progress cautiously.
Legislation:
Family Law Act 1975 (Cth), ss.60CC(2A), 60CC(3)(a) – (m); 65DAA.
Cases cited:
AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Slater v Light (2013) 48 Fam LR 573
Applicants: MS MATTICK & MR MATTICK
First Respondent: MS B MATTICK
Second Respondent: MR SALWAY
File Number: CAC 381 of 2017
Judgment of: Judge WJ Neville
Hearing date: 15 July 2019
Date of Last Submission: 3 October 2019
Delivered at: Canberra
Delivered on: 9 April 2020 REPRESENTATION
Counsel for the Applicants: Ms R Wheeler
Solicitors for the Applicants: Wagga Family Lawyers
Counsel for the First Respondent: Mr C Sperling
Solicitors for the First Respondent: Legal Aid NSW Wagga Wagga
Counsel for the Second Respondent: Ms M Davis
Solicitors for the Second Respondent: Friedlieb Fox McLeod
Counsel for the Independent Children’s Lawyer: Mr G Stagg
Solicitors for the Independent Children’s Lawyer: Mills Oakley ORDERS
(1)All previous parenting Orders be discharged.
Parental Responsibility
(2)The Maternal Grandparents and the Mother have equal shared parental responsibility for the children, X (born: in 2011), Y (born: in 2012) and Z (born: in 2014) (“the children”). Absent agreement between the Maternal Grandparents and the Mother, the Maternal Grandparents shall have the final decision-making responsibility.
(3)In the event that the Mother’s health is compromised to the extent that it impacts her capacity to exercise parental responsibility, the Maternal Grandparents shall have sole parental responsibility for the children for that time. Upon confirmation of the Mother’s recovery, the Mother and the Maternal Grandparents shall resume equal shared parental responsibility, subject to the conditions specified herein.
(4)The Maternal Grandparents are to communicate with the Father, and keep him properly informed of all major long-term issues (Section 4 of the Family Law Act 1975 (Cth)) for the children.
Residence
(5)The children live with the Maternal Grandparents.
Time With
(6)Absent any other agreement in writing between the Mother and the Maternal Grandparents, the Mother is to spend time with the children each alternate weekend, with times and changeover to be as agreed between the Mother and the Maternal Grandparents.
(7)Absent any other agreement between the parties in writing, the Father shall spend time with the children as follows:
Stage 1: For a period of 3 months, from the date of these Orders until the end of June 2020:
a.Each alternate weekend for the maximum period permissible, with such time to be supervised at the Town A Children’s Contact Centre and with such supervision to be paid for by the Father.
Stage 2: For a period of 6 months, from the end of June 2020 until the end of December 2020:
b.Each alternate weekend supervised by either (or both) of the Paternal Grandparents for a period of 3 hours, either from 10:00am to 1:00pm or from 1:00pm to 4:00pm, with the arrangements as to times, changeover and location to be agreed between the Maternal Grandparents and the Paternal Grandparents.
Stage 3: For a period of 3 months, from the end of December 2020 until the end of March 2021:
c.Each alternate weekend supervised by either (or both) of the Paternal Grandparents for a period of not more than 6 hours, with the arrangements as to times, changeover and location to be agreed between the Maternal Grandparents and the Paternal Grandparents.
Stage 4: For a period of 6 months, from the end of March 2021 until the end of September 2021:
d.Each alternate weekend supervised by either (or both) of the Paternal Grandparents from 10:00am on the Saturday until 1:00pm on the Sunday, with the arrangements as to changeover and location to be agreed between the Maternal Grandparents and the Paternal Grandparents.
Stage 5: For a period of 6 months, from the end of September 2021 until the end of March 2022:
e.Each alternate weekend supervised by either (or both) of the Paternal Grandparents from 10:00am on the Saturday until 4:00pm on the Sunday, with the arrangements as to changeover and location to be agreed between the Maternal Grandparents and the Paternal Grandparents.
Stage 6: Thereafter, from the end of March 2022 onwards:
f.Absent any other agreement between the parties in writing, thereafter each alternate weekend from after school or 5:00pm on the Friday until 5:00pm on the Sunday, with changeover locations and arrangements to be agreed in writing between the Maternal Grandparents and the Paternal Grandparents.
(8)For the purpose of Order 7, the Paternal Grandparents are each to file an undertaking with the Court within the next 21 days confirming their understanding of their responsibilities as supervisors of the Father’s time with the children.
Miscellaneous
(9)The Father is to participate in a Parenting Program once per year for the next 3 years, with at least two of these programs to include “anger management” components. Upon completion of these courses, the Father is to forthwith provide to the Court, the parties and the Independent Children’s Lawyer confirmation of completion of the courses.
(10)The Father is to engage with the children’s paediatrician and counsellor/psychologist, as deemed appropriate by that professional.
(11)The Father is to maintain psychological counselling for himself on a regular basis for the next three years, for a minimum of 2 sessions per year, and is to provide the Court, the parties and the Independent Children’s Lawyer with confirmation of his completion of these courses.
(12)If the Father does not comply with Orders 10 to 12 herein, then his time with the children shall revert to Stage 2 and the progression of time shall resume from that stage.
(13)The Maternal Grandparents are to provide the Father with the name and contact details of each childcare centre, school or other educational institution the children attend. These Orders shall be an authority for such educational institutions to release any and all notices and records concerning the children to the Father.
(14)The Maternal Grandparents are to advise the Father of any significant medical or health-related condition involving the children. These Orders shall be an authority for such healthcare professionals to release any medical records concerning the children to the Father.
(15)The Orders herein are subject to any other agreement in writing between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Mattick & Mattick & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAC 381 of 2017
MS MATTICK & MR MATTICK Applicants
And
MS B MATTICK First Respondent
MR SALWAY Second Respondent
REASONS FOR JUDGMENT
Introduction
1.In the course of his oral evidence, the highly experienced expert in this matter, clinical psychologist Dr C, said that it would be best for all three children in the proceeding - X, aged 9; Y, aged 7; and Z, aged 5 (“the children/the girls”) - to spend time with all sides of the family, including the paternal Grandparents.
2.Dr C said, confirming what is in his two Reports (which became Exhibits A1 and A2), that all the children were “vulnerable.” He explained why this was so; his detailed comments are noted later in these reasons.
3.In his view, on a number of occasions and in different ways, he said that the Father was very immature and that he did not recognise the needs of his children.[1] Dr C said that he could not countenance the children living with the Father. He recommended that there be, over time, a transition in the children’s time with the Father. He suggested that it start with it being supervised by the paternal Grandparents to unsupervised, with the transition being monitored more generally by the paternal Grandparents as well. The so-called “end goal” for the Father’s time with the children, in his view, should be monthly overnight time, which should take place at the paternal Grandparents’ residence.
[1] See further pars.141 and 146 of Dr C’s first Report.
4.The First Respondent Mother was diagnosed with multiple sclerosis in 2019, and now lives in Town D with her new partner. The children have been living with the maternal Grandparents in Town A since 2016.
5.The factors just outlined, and more noted later in these reasons, confirm a significant range of delicacies and dynamics that are clearly evident in the matter. That said, the only substantive issues for determination are the nature and frequency of the Father’s time with the children, and “parental responsibility.” The children continuing to live with the maternal Grandparents is not in issue.
6.For the reasons that follow, in my view, the Orders proposed by the Independent Children’s Lawyer (“the ICL”), with some modest revision, are in the best interests of the children.
Orders sought by the Applicant Maternal Grandparents
7.The Orders sought by the Applicant maternal Grandparents, contained in their Case Outline filed on 11th July 2019, were as follows:
1. The Applicant Maternal Grandparents and the First Respondent Mother have equal shared parental responsibility for the children.
2. That the children live with the Applicant Maternal Grandparents.
3. That for the purposes of communication between the parties, all parties are to engage positively in the use of a communication book.
4. That for the purposes of Order 1 hereof, for orders that do not require an urgent decision to be made, the following be implemented:
a. the Applicant Maternal Grandparents and First Respondent Mother are to inform the Second Respondent Father of the parental responsibility issue that requires a decision, and such communication to be sent via the communication book;
b. within fourteen days from the date the Applicant Maternal Grandparents and the First Respondent Mother give the Second Respondent Father the notice, the Second Respondent Father is t oadvise the Applicant Maternal Grandparents and First Respondent Mother of his views on the matter in writing via the communication book; and
c. the Applicant Maternal Grandparents and the First Respondent Mother will consider the Second Respondent Father’s views but they will have the final say on the decision to be made.
5. That the children spend time with the First Respondent Mother as agreed between the Applicant Maternal Grandparents and the First Respondent Mother.
6. That the children spend time with the Second Respondent Father as follows:
a. for the next 12 months from 10.00am to 12.00pm each alternate Sunday;
b. thereafter, from 10.00am to 3.00pm each alternate Sunday;
c. from 10.00am to 12.00pm on Father’s Day 2019 and thereafter from10.00am to 3.00pm;
d. from 10.00am to 12.00pm on Boxing Day 2019 and thereafter from10.00am to 3.00pm; and
e. at such other times as agreed by the parties in writing.
7. That all time spent between the Second Respondent Father and the children shall be supervised by the Paternal Grandparents and for this purpose the Paternal Grandparents are to provide formal undertakings to the Court in relation to the supervision, including but not limited to that at no time shall the children be brought into contact with the Respondent Father’s brother, Mr E.
8. That the changeover for the time spent in accordance with Orders 6 - 8
shall take place between the Maternal and Paternal Grandparents only:
a. at the Town A Children’s Contact Centre (‘the Town A CCC’) if available; and
b. if the TOWN A CCC is not available, in the carpark behind the TOWN A CCC.
9. That leave be granted to the Applicant Maternal Grandparents to provide a copy of the report of Dr C dated 22 December 2018 to the childrens’ treating psychologist and/or counsellor.
10. Pursuant to section 68B Family Law Act 1975 the Respondent Father shall be and is hereby restrained by injunction from permitting the Respondent Father’s brother, Mr E to be present at any time whilst the Respondent Father is spending time with the children pursuant to Order 6 above.
11. Pursuant to section 68B of the Family Law Act 1975 the Second Respondent Father shall be and is hereby restrained from consuming alcohol or illicit drugs during time spent with the children or within 12 hours prior to contact with the children.
12. Pursuant to section 68B of the Family Law Act 1975 the Second Respondent Father shall be and is hereby restrained from attending the school which the children may attend from time to time or the home of the Applicants for the purposes of spending time with the children, save for attending upon events at the children’s school that parents are invited to attend.
13. Pursuant to section 68B of the Family Law Act 1975 the Second Respondent Father shall be and is hereby restrained from driving a motor vehicle in which the children are passengers.
14. That the above Orders 10 to 13 pursuant to section 68B of the Family Law Act 1975 are injunctions to which section 68C would apply and accordingly any police officer made aware of these Orders and who on reasonable grounds believe that such Orders and injunctions have been breached by the Second Respondent Father, may arrest the Second Respondent father without warrant.
15. That all parties shall not denigrate each other or partner, or either parent in the presence and/or hearing of the children, and that they each ensure that no other person denigrates the other party or partner of either party in the presence and/or hearing of the children.
16. That all parties be entitled to receive copies of school reports, school notices, school photos, and the like with particular reference to the school functions and/or school activities in which the child is involved including parent-teacher interviews.
17. That each party shall notify the other forthwith if any of the children suffer from serious illness and/or medical emergency whilst in their care and shall provide details of treating medical practitioners or medical facilities.
Notation:
A. The parties agree to consider further increases to the time between the Respondent Father and the children as recommended by the childrens’ treating psychologist and/or counsellor.
8.On the second day of the Final Hearing, being 16th July 2019, the Applicant paternal Grandparents filed a further revised Minute of Orders Sought in Court, which was as follows:
1. The Applicant Maternal Grandparents and the First Respondent Mother have equal shared parental responsibility for the children.
2. That the children live with the Applicant Maternal Grandparents.
3. That for the purposes of communication between the parties, all parties are to engage positively in the use of a communication book and a communication app as recommended by the ICL (“the app”).
4. That for the purposes of Order 1 hereof, for orders that do not require an urgent decision to be made, the following be implemented:
a. the Applicant Maternal Grandparents and First Respondent Mother are to inform the Second Respondent Father of the parental responsibility issue that requires a decision, and such communication to be sent via the communication book and the communication app as recommended by the ICL (“the app”);
b. within fourteen days from the date the Applicant Maternal Grandparents and the First Respondent Mother give the Second Respondent Father the notice, the Second Respondent Father is to advise the Applicant Maternal Grandparents and First Respondent Mother of his views on the matter in writing via the communication book and the app;
c. the Applicant Maternal Grandparents and the First Respondent Mother will consider the Second Respondent Father’s views but they will have the final say on the decision to be made and advise the Father via the communication book and the app.
5. That the children spend time with the First Respondent Mother as agreed between the Applicant Maternal Grandparents and the First Respondent Mother.
6. That the children spend time with the Second Respondent Father subject to and conditional upon the matters set out in paragraph 7 as follows:
a. for the next 3 months from 10.00am to 12.00pm each alternate Sunday;
b. for the next 3 months thereafter, from 10.00am to 1.00pm each alternate Sunday;
c. thereafter, for the next 3 months 10.00am to 2.00pm each alternate Sunday;
d. thereafter from 10.00am to 4.00pm each alternate Sunday
e. from 10.00am to 12.00pm on Father’s Day 2019 and thereafter from 10.00am to 4.00pm on Father’s day;
f. from 10.00am to 12.00pm on Boxing Day 2019 and thereafter from 10.00am to 4.00pm on Boxing Day; and
g. at such other times as agreed by the parties in writing.
7. That all time spent between the Second Respondent Father and the children shall be supervised by both of the Paternal Grandparents and for this purpose the Paternal Grandparents are to provide formal undertakings to the Court in relation to the supervision in the terms annexed to these orders; such undertakings to be given in writing and orally to this court and noting that the undertakings, if breached, are a contempt of the court and punishable by imprisonment and/or fine and/or both.
8. That the changeover for the time spent in accordance with Orders 6 – 8 shall take place between the Maternal and Paternal Grandparents only and at:
a. at the Town A Children’s Contact Centre (‘the TOWN A CCC’) if available; and
b. if the TOWN A CCC is not available, in the carpark behind the TOWN A CCC.
9. That leave be granted to the Applicant Maternal Grandparents to provide a copy of the report of Dr C dated 22 December 2018 and his addendum dated 20 February 2019 to the childrens’ treating psychologist and/or counsellor.
10. Pursuant to section 68B Family Law Act 1975 the Respondent Father shall be and is hereby restrained by injunction from permitting the Respondent Father’s brother, Mr E to be present at any time whilst the Respondent Father is spending time with the children pursuant to Order 6 above.
11. Pursuant to section 68B of the Family Law Act 1975 the Second Respondent Father shall be and is hereby restrained from consuming alcohol or illicit drugs during time spent with the children or within 12 hours prior to contact with the children.
12. Pursuant to section 68B of the Family Law Act 1975 the Second Respondent Father shall be and is hereby restrained from attending the school which the children may attend from time to time or the home of the Applicants for the purposes of spending time with the children, save for attending upon events at the children’s school that parents are invited to attend and he shall not interfere with the applicants’ time with the children on such occasions or attend within 5 metres of the applicants and a copy of this order may be provided to the children’s school by the applicants.
13. Pursuant to section 68B of the Family Law Act 1975 the Second Respondent Father shall be and is hereby restrained from driving a motor vehicle in which the children are passengers.
14. That the above Orders 10 to 13 pursuant to section 68B of the Family Law Act 1975 are injunctions to which section 68C would apply and accordingly any police officer made aware of these Orders and who on reasonable grounds believe that such Orders and injunctions have been breached by the Second Respondent Father, may arrest the Second Respondent father without warrant.
15. That all parties be and are hereby restrained from denigrating each other or their respective partners, or members of their families in the presence and/or hearing of the children, and that they each ensure that no other person denigrates the other party or their partner or members of the respective families of either party in the presence and/or hearing of the children.
16. That
(a) all parties be entitled to receive copies of school reports, school notices, school photos, and the like with particular reference to the school functions and/or school activities in which the child or children or any of them is involved including parent-teacher interviews at their own expense
(b) each of the parties be and is authorised by this order to engage with any of the children’s treating health or other professionals at their own expense in order to ascertain all relevant details of the children’s health and welfare.
(c) the maternal grandparents shall provide to the parties and the mother via the communication book and the app, details of all medical and other appointments.
(d) the maternal grandparents shall provide to the father and mother, by the communication book and the app, details of all
i) medication the children may be taking from time to time or
ii) any dietary recommendations for the children as recommended by any treating professional and the mother and the father shall adhere to such recommendations.
17. That each party shall notify the other forthwith if any of the children suffer from serious illness and/or medical emergency whilst in their care and shall provide details of treating medical practitioners or medical facilities and/or counsellors and the like for the children, in the communications book and the app.
18. The father by this order is entitled to make his own separate appointment with Mr F, the children’s counsellor, to ascertain what steps the father might take to assist his relationships with the children,
19. The father by this order hereby authorises Ms G, Psychologist, to provide a copy of her notes of treatment with the father to the ICL, the mother’s and maternal grandparents’ lawyers. Such notes to be held by them by not used for any other purpose save these proceedings.
20. The
(a) father shall do all acts and things and sign all documents in order to engage and be treated by, and follow all directions of a clinical psychologist for his lack of understanding and acceptance of the impact of his past actions and behaviour upon the children and present proof of such engagement of a clinical psychologist to the maternal grandparents’ lawyers, the mother’s lawyer and the ICL within 14 days of this order.
(b) ICL be at liberty to provide the said psychologist in (a) above with a copy of Dr C dated 22 December 2018 and his addendum dated 20 February 2019.
21. Liberty to apply to all parties in the event that the Father does not comply with paragraph 20 above
22. The maternal grandparents shall do all acts and things to engage with Relationships Australia within 14 days in order to invite the paternal grandparents to attend with them, to improve the communication between them for the benefit of the children.
Orders sought by the First Respondent Mother
9.The Orders sought by the First Respondent Mother, contained in her Case Outline filed on 11th July 2019, were as follows:
1. All previous parenting Orders are discharged.
2. The maternal grandparents and the mother have equal shared parental responsibility for
X born in 2011,
Y born in 2012 and
Z born in 2014 (‘the children’).
3. The children live with the maternal grandparents.
4. The children spend time with the mother as agreed between the mother and the maternal grandparents.
5. The children spend time with the father:
5.1 For the next 12 months, each alternate Sunday from 10.00 am to 12.00 pm;
5.2 Thereafter, each alternate Sunday from 10.00 am to 3.00pm;
5.3 On Father’s Day 2019 from 10.00 am to 12.00 pm and thereafter on Father’s Day from 10.00 am to 3.00 pm;
5.4 On Boxing Day 2019 from 10.00 am to 12.00 pm and thereafter each Boxing Day from 10.00 am to 3.00 pm.
6. The time spent with the father pursuant to Order 5 above shall be supervised by the paternal grandparents on the provision of suitable undertakings as to the supervision.
7. The father and his parents shall do all things to ensure that the father’s brother, Mr E, is not present at any time whilst the father is spending time with the children pursuant to Order 5 above and the paternal grandparents shall be required to ensure that Mr E is not present during contact as part of their undertakings.
8. For the purpose of changeover, changeover will occur at the Town A Children’s Contact service wherever possible, but where not possible changeover will occur between the maternal grandparents and the paternal grandparents at McDonald’s Town A. The father will not be present for changeover.
9. Pursuant to section 68B of the Family Law Act the father is restrained by injunction from driving the children in his or any other person’s motor vehicle and the paternal grandparents will be required to ensure this does not occur and provide the appropriate undertakings.
10. Pursuant to section 68B of the Family Law Act 1975 the father, Mr Salway (‘Mr Salway), shall be and is hereby restrained from consuming alcohol or illicit drugs during time spent with the children or within 24 hours prior to contact with the children.
11. Pursuant to section 68B of the Family Law Act 1975 the father, Mr Salway, shall be and is hereby restrained from attending the children’s school and/ or daycare which the children may attend from time to time, save for attending upon attending events at the children’s school that parents are invited to attend.
12. The above Orders 10, 11, 12 and each of its subparagraphs pursuant to section 68B of the Family Law Act 1975 are injunctions to which section 68C would apply and accordingly any police officer made aware of these Orders and who on reasonable grounds believes that such Orders and injunctions have been breached by the father, Mr Salway, by either harassing, molesting, stalking or physically harming or threatening to harm the mother or the applicants, may arrest the father without warrant.
13. Without admission, each party is hereby restrained from saying bad or unkind things about the other party or their partners in the presence or hearing of the children and from allowing any third party to do so.
NOTATION
A. the parties agree to consider further increases to the time between the father and the children as recommended by the children’s treating psychologist.
Orders sought by the Second Respondent Father
10.The Second Respondent Father filed a Case Outline on 11th July 2019, in which his Orders sought were as follows:
1. For a period of 12 months, parental responsibility for the children be shared between the applicant grandparents, the mother and the father.
2. For the purpose of Order 1, the parties attend each three months upon Relationships Australia for a mediated conference (whether by shuttle mediation or otherwise) about the children and any decisions that need to be made.
3. At the conclusion of the 12-month period as per Order 1, the mother and father share parental responsibility for the children and continue to attend each three months upon Relationships Australia for a mediated conference.
4. That the children continue to live with the maternal grandparents and spend time and communicate with the father in a gradually increasing timetable as follows:
For a period of 8 weeks:
a. Each Wednesday from after school to 7pm;
b. Each Tuesday, Thursday and Friday via telephone between 6pm-6:30pm;
c. Each alternate Saturday from 9am to 5pm and thereafter
For a period of 12 weeks:
d. Each Wednesday from after school to 7pm;
e. Each Tuesday, Thursday and Friday via telephone between 6pm- 6:30pm;
f. Each alternate Saturday from 9am to 5pm and Sunday from 9am to 5pm and thereafter
For a period of 12 weeks:
g. Each Wednesday from after school to 7pm;
h. Each Tuesday, Thursday and Friday via telephone between 6pm- 6:30pm;
i. Each alternate Saturday from 9am to Sunday 5pm.
5. At the conclusion of time as per Order 2, and on confirmation of adherence to Orders 5-9, the children live with the father.
6. When the children commence living with the father, the children spend time with the maternal grandparents and/or mother as follows:
a. Each Wednesday from after school to 7pm;
b. Each Tuesday, Thursday and Friday via telephone between 6pm-6:30pm;
c. Each alternate weekend from after school Friday to 5pm Sunday;
d. For one half of each school holiday period, been the first half in even years and the second half in odd years;
e. At all other times as agreed between the parties in writing.
7. The father enrol and complete “Circle of Security” or other appropriate parenting course as recommend by the ICL as soon as practicable after the making of these Orders and provide the certificate of completion to the mother and maternal grandparents.
8. The maternal grandmother provide the father with contact details for the children’s treating medical practitioners and do all things to ensure the father is able to contact those practitioners for information and documentation regarding the children.
9. The father within 14 days of the making of these Orders contact the children’s current counsellor/treating psychologist, with the purpose of such contact been to educate the father and assist the father form an understanding of the children’s current issues, the treatment of those issues, recommendations for further treatment and any other matters considered relevant by the counsellor/treating psychologist.
10. That the father engage with a clinical psychologist as nominated by the Independent Childrens Lawyer and the father continue to engage with that psychologist as recommended by that person.
11. The father’s clinical psychologist be provided with a Copy of the Expert Report of Dr C dated 20 February 2019 and the Addendum dated 22 December 2018.
12. That all changeovers that do not occur at the school occur at the entrance to Supermarket in Town A.
13. That all parties be restrained from consuming alcohol or illicit substances during their time with the children and within 24 hours prior to contact with the children.
14. That each party keep the other informed of their current residential address, mobile telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
15. That in the event of childhood illness or emergency the party with whom the children are with will contact the other party forthwith to inform them.
16. That each of the parties, their servants and agents be hereby restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating the other party.
17. That all parties be permitted to liaise directly with the children's day care and school and to receive notices, information, newsletters, reports, photographs and any other necessary information about the children’s progress.
18. That each party is at liberty to attend at the children’s day care or pre-school for the purposes of any function or activity normally attended by parents.
11.The Father filed a revised Minute of Orders Sought in Court on 16th July 2019, which provided as follows:
1. Parental responsibility for the children be shared between the applicant grandparents, the mother and the father.
2. For the purpose of Order 1, the parties attend each three months upon Relationships Australia for a mediated conference (whether by shuttle mediation or otherwise) about the children and any decisions that need to be made.
3. If the parties are unable to come to an agreement regarding decisions about the children, the paternal grandparents shall make the ultimate decision on the following terms:
The decision that needs to be made has been outlined with the mother and father in mediation or in writing or both;
The maternal grandparents will give genuine consideration to the options of the mother and father;
The maternal grandparents will notify the mother and father in writing of the decision that is made as soon as practicable after that decision has been made.
4. That the children live with the maternal grandparents.
5. The father will forthwith enrol and complete the Triple P parenting program or other appropriate parenting course as recommend by the ICL as soon as practicable after the making of these Orders and provide the certificate of completion to the mother and maternal grandparents.
6. The father will forthwith engage with a clinical psychologist as nominated by the Independent Childrens Lawyer and the father will continue to engage with that psychologist as recommended by that person.
7. The father’s clinical psychologist be provided with a Copy of the Expert Report of Dr C dated 20 February 2019 and the Addendum dated 22 December 2018.
8. The paternal and maternal grandparents attend upon Relationships Australia for mediation as to establishing a working relationship for the benefit of the children.
9. The maternal grandmother provide the father with contact details for the children’s treating medical practitioners and do all things to ensure the father is able to contact those practitioners for information and documentation regarding the children.
10. The father within 14 days of the making of these Orders contact the children’s current counsellor/treating psychologist, with the purpose of such contact being to educate the father and assist the father to form an understanding of the children’s current issues, the treatment of those issues, recommendations for further treatment and any other matters considered relevant by the counsellor/treating psychologist.
11. The maternal grandparents do all things necessary to facilitate the children’s continual engagement with their current treating counsellor until such time as that counsellor discharges the children from that service.
12. The children spend time and communicate with the father as follows:
STAGE ONE
a. For a period of not less than three months, each alternate Sunday for a period of 4 hours at the paternal grandparent’s home and in the presence of the paternal grandparents.
b. By telephone each Tuesday, Thursday and Friday with the father telephoning the children between 6.00pm and 6.30pm.
c. That for the purpose of the time set out in Order 12A the paternal grandparents sign an undertaking specifically noting the following:
i.If the paternal grandparents observe the children to become distressed during their time with the father they will immediately advise the maternal grandparents and request the children be collected.
ii.If the paternal grandparents observe the father to become aggressive or his behaviour escalated in any way that may have a negative impact upon the children, the paternal grandparents will immediately advise the maternal grandparents and request the children be collected.
13. Following the time set out in Stage One, the Children’s Counsellor provide a report to all the parties which outlines whether the children are settled with the change to their time with their father or otherwise and any other factors the counsellor considers relevant.
14. No less than three months after the father has engaged with a psychologist as per Order 6, that psychologist provide a report to all the parties confirming the father’s engagement with that service, his treatment and progress in relation to the same.
15. Following receipt of reports in accordance with Orders 13 & 14, the parties attend upon Relationships Australia to discuss the Reports and any issues that have arisen from those reports and progress of the father’s time moving forward.
16. If the Reports as per Orders 13 & 14 are positive regarding the children and the father’s engagement, the father’s time will progress to Stage 2.
17. If the Reports as per Orders 13 & 14 raises significant concern as to the progression of time, then for a period of not less than 8 weeks:
a. The fathers time as per Order 12A continue, and
b. The father is at liberty to attend the school on one occasion per week to spend time with the children during class breaks [as envisioned by the school letter dated 31 August 2017 annexed to father’s affidavit].
18. Following the period set out in Order 17, such further reports from clinicians will be requested for the review of the parties as to either the father’s progress and commitment to improvement or the children’s settled behaviour and the father’s time will progress to Stage 2.
19. If the Childrens counsellor raises significant concerns regarding the children in two consecutive reports, the parties attend upon Relationships Australia for the purpose of family therapy to address the children’s time with the father.
20. For the purpose of Order 19, each party will provide sufficient authorities for the family therapist speak with:
a. the fathers treating psychologist;
b. the children treating clinician; and
c. any other relevant clinician for the mother or grandparent.
21. That the parties will follow the recommendations of the family therapist as to the implementation of Stage 2.
STAGE 2
22. For a period of not less than 12 weeks, the father will spend time with the children:
a. each alternate Sunday for a period of 6 hours with the paternal grandparents or either of them present for the first half hour and last half hour of the time;
b. Once per week at an extra-curricular activity outside of school, such activity to be agreed between the father and the maternal grandparents;
c. on one occasion per week at the school to spend time with the children during class breaks.
d. By telephone each Tuesday, Thursday and Friday with the father telephoning the children between 6.00pm and 6.30pm.
e. At all such other times as agreed between the parties in writing.
STAGE 3
23. Unless the children’s treating clinician raises serious concerns as to further progress of the children’s time with the father {and noting that a report from the clinician is not required) at the conclusion of Stage 2, the father thereafter spend time with the children for a period of 3 months:
a. Each alternate Sunday from 9am to 5pm;
b. Once per week at an extra-curricular activity outside of school;
c. on one occasion per week at the school to spend time with the children during class breaks or in classroom activities at the invitation of the relevant child’s teacher.
d. By telephone each Tuesday, Thursday and Friday with the father telephoning the children between 6.00pm and 6.30pm.
e. At all such other times as agreed between the parties in writing.
Orders sought by the Independent Children’s Lawyer
12.The Orders sought by the Independent Children’s Lawyer (“ICL”) were set out in her final submissions. Those submissions, including the Orders sought, are set out in full later in these reasons.
Oral evidence of the Applicant Maternal Grandmother
13.The oral evidence of the Applicant Maternal Grandmother, briefly summarised, was as follows.
14.She confirmed that, due to what she described generally as “safety issues” surrounding the Father’s history of poor conduct, she could never see the children’s time with the Father progressing to overnight.
15.Even if the eldest child, after counselling and mediation, expressed a wish to spend overnight time with the Father, the Grandmother was hesitant about this occurring. She repeated that all she wanted was what was best for the children.
16.The Grandmother confirmed that the relationship between the parents was mutually volatile. She said that the Mother was now in a “better place”. She had attended counselling, and had taken medication for post-natal depression. The Grandmother also said that notwithstanding everything that had been done (including by her) to assist the Mother in her parenting, she still had some reservations about things like the Mother’s parenting capacity, especially in the light of her diagnosis with multiple sclerosis.
17.Initially she said that she was not sure what the Father would have to do in order for his time with the children to progress to overnight. He would certainly have to do a parenting course. The Grandmother would be guided in all things in relation to the children by their counsellor. She said that while she was prepared to give the Father a chance, she was not optimistic about appropriate progress on his part. She holds deep- seated doubt about the Father’s parenting capacities, as well as the impact on the children (and others) of his past, aberrant, and sometimes violent, behaviour.
18.The Grandmother confirmed that the Father was seeing the children at her residence. She was not sure if the children were seeing him at the paternal Grandparents’ residence. She said that in March 2017 she asked the Father to stop coming to her house but he continued to attend.
19.She said that she genuinely wanted to find a better way to communicate with the Father and for things to improve generally for the sake of the children. She accepted that, for example, for mediation to work, she would have to alter her quite implacable position against, and attitude towards, the Father.
20.In further elaboration of her reasonably understandable disposition towards him because of the well-known history of difficulties, the Grandmother confirmed that she did not have a good relationship with the Father. For example, she did not feel that she could send him a SMS message to advise him, for example, that the children had attended a medical specialist appointment in Sydney about them having a coeliac disease. She said that she assumed that this information had been passed on to the Father by the contact centre. Clearly it had not, because during this cross examination the Father left the Court room somewhat distressed and distracted upon hearing this medical news. His Counsel confirmed to the Court that the Father was not aware of this medical development. Nor had the Father been advised about information provided by a dietician. The Grandmother said that she also assumed that the contact centre would pass on such information.
21.She also confirmed that, for example, if the children developed an ear infection, she would advise the contact centre and ask them to pass this information on to the Father.
22.Regarding communication issues generally, the Grandmother said that she simply liaises with her lawyer. She has instructed her lawyer to liaise with the Father’s lawyer.
23.There followed a series of questions about what, and when, information regarding the children and various of their health issues had, or had not, been passed on to the Father. I do not need to canvass them in detail except to note that the Grandmother, in my view with more than some degree of justification, said that she (and her Husband) were dealing with “huge issues” regarding the children, and with their daughter, which led to them not focussing very much at all on the Father. That said, the Grandmother acknowledged that the Father was an important and significant figure in the lives of the children.
24.She said that she has facilitated the Father’s time with the children. Her goal, she said, was for the children not to be scared of their Father or of spending time with him, and that they were always in a loving and caring environment. She said that the time with the Father needed to progress slowly and according to the needs of the children. In the best of all worlds, she could envisage the time with the Father being every second weekend and half school holidays. However, she did not have confidence this would be possible. She noted too that there is always the multi-layered position of the Mother to consider – health, geographical location, and much more besides.
25.The Grandmother said that, in her view, the children were no longer at risk of abuse but still of being embroiled in family violence to some degree while-ever the Father’s uncontrolled behaviour remained an issue. For the moment, she could not see (nor was it in her Orders sought) the children spending time with the Father at Christmas. There would need to be, in her view, an acceptance by the Father of his “issues”, such as his anger and previous violent behaviour (outlined in significant detail, especially in the Reports of Dr C set out later in these reasons). She sees “improvement” in the Father’s behaviour as likely to take a very long time.
26.In answer to questions from the Father’s Counsel, the Grandmother said that when the children first came to live with her they were quite stressed. Over time, she said, much of their behaviour settled. She said that while the maternal Grandparents asked the Father to stop coming to their house to see the children, at no stage did they otherwise stop him seeing the children.
27.There was a somewhat lengthy discussion with the Grandmother about a series of specific events regarding the Father spending time with the children at various birthday parties and the like. I need not traverse these matters because, in my view, they are of very modest import compared to all the other evidence. I should however note that the Grandmother said that she did observe the Father driving “recklessly.” She also confirmed that she sought to have the children added to an Apprehended Violence Order. Further, she confirmed that she made no proposals to the Father regarding his time with the children; such discussion in this regard took place between the parents directly.
28.The Father has a younger child, H, with another partner. The Grandmother said that she felt it best for this child not to attend at the contact centre with the Father when he was spending time with the girls. She said that the children are familiar with the contact centre and enjoy it but they do not express any excitement about their time with the Father. She also said that she did not think that the children were loved or nurtured by the Father. These latter comments, for my part, perhaps most poignantly, highlighted the large and ever-present trust deficit between the maternal Grandparents and the Father. It will take quite some time, and very significant effort by everyone, to bridge it.
29.The Grandmother confirmed that she continued to hold extreme concerns about the Father’s mental health, and his lack of parenting skills. She said that she could not see the children spending overnight time with him.
Oral evidence of the Applicant Maternal Grandfather
30.The relatively brief oral evidence of the Applicant Maternal Grandfather, summarised, was as follows.
31.He confirmed that the children were initially seeing their Father at the residence of the maternal Grandparents. He could not recall the Father ever wanting to take the children away from the house, but confirmed that the Father was never prevented from seeing or spending time with the children.
32.The Grandfather said that there were concerns about the Father’s time with the children at the paternal Grandparent’s house because of an incident in March 2015 that involved the Father’s brother, Mr E.
33.He said that he and his Wife make decisions together regarding the children; he denied that he simply followed the lead of his Wife.
34.The Grandfather said that he got along reasonably well with the Father who he had known for about 6 years. He said that the Father needed to work on and to change his anger management, and his parenting skills. He confirmed however that the relationship between the Father and the maternal Grandmother had worsened. He said that he would have no major difficulties communicating with the Father, or with the paternal family.
Oral evidence of the First Respondent Mother
35.The oral evidence of the First Respondent Mother was as follows. The Mother’s evidence included a short report (dated 11th July 2019, which became Exhibit F) regarding the Mother’s health including the impact of, and related matters regarding, her multiple sclerosis. I should also note that the Mother’s evidence was given “remotely” by telephone from the regional Legal Aid office.
36.I might also note that, unfortunately, although it had been “booked” with the Registry of the Local Court quite some time earlier for access to the remote access facility in the Court precinct, during the hearing the management of the Registry advised that it was not available to this Court because of some new but unseen “memorandum” between the Courts. This was in circumstances where the relevant facility was not in fact being used. Most unfortunately, after more than a decade of the most cordial and supportive interactions between the Local Court Registry and this Court on its regular circuits to Town A, the new management that governs the Registry has determined that the most limited assistance is to be given to this Court. This development is of consequence to local practitioners and litigants in this region, as was evidenced by the delay and difficulties caused by the sudden and unexplained unavailability of the remote witness facilities at the Local Court.
37.The Mother confirmed that when she and the children were living with her parents, she was the person making relevant decisions for the children. When she moved to Tasmania for a while, she was in regular discussion with her parents regarding issues and decisions regarding the children, which included the Father’s time with them.
38.She confirmed that it was a decision between her and the maternal Grandmother to stop the Father coming to the house because of (a) the distress between the parents, and (b) the fear of the Father removing the children from the Grandmother’s residence. She said, in effect, that her knowledge of the Father’s post-separation behaviour came from a blend of what she knew herself, what came from her Mother, the Reports of Dr C, reports from the children’s general practitioner, and the brief notes from the contact centre. She noted that she had not seen the Father with the children since 2017. Her concerns about the Father, she confirmed, were – obviously - historical.
39.The Mother had no reason why she was opposed to the Father taking his baby son, H, to the contact centre when he was spending time with the children, other than that she simply did not wish this to occur. She said that it could occur, but only gradually. She also confirmed that the Father needed, in her view, to do further “work” such as in anger management counselling and a parenting course.
40.The Mother was unsure of the Father spending overnight time with the children because, among other things, he did not know their routines.
41.She confirmed that she would like to spend more time with the children herself, if that can be arranged, such as every second weekend. She said that she talks with her parents and they all work out a decision. Methinks however that it is more the maternal Grandmother who really makes the decisions, albeit in consultation with the Mother, but she is the “main player,” so to speak. I do not say this in any critical way; the Grandmother is by far the one who is “holding all things together.” Indeed, the Mother said that in instances where they do not agree, it should be the maternal Grandmother who should ultimately make decisions regarding the children. She also said that she would not wish to put any extra stress on her Mother that would come from having to consult with the Father. She said that she would be content to use a “Parenting App” to communicate with the Father, and with the maternal Grandmother as necessary.
42.The Mother said that she would not move back to Town A because her partner has a job and home in Town D.
43.The Mother confirmed that when she went to Tasmania in 2016, she was mentally unwell. She thought, although not so diagnosed, that she had PTSD at this time. She was also concerned, she said, with her depression at the time. The Mother confirmed that she elided, and continued to do so, the observations and assessments of her Mother on various occasions. This included her Mother’s assessment that the Father needed to do an anger management course for at least 6 months.
44.The Mother said that she considered mediation to be the best way forward to resolve future issues.
Oral evidence of the Second Respondent Father
45.Summarised, the oral evidence of the Second Respondent Father was as follows.
46.The Father said that he considered the Report of Dr C to be “a bit unfair”, including the conclusion that the Father did not take responsibility for his actions. He said he did not understand how Dr C came to this view. For example, he said that he did take responsibility for arguments with the Mother for financial issues, and for raising his voice at times.
47.He said that his assault of his own Father was a result of his immaturity; he was only 18 at the time. He confirmed that it was his fault; his emotions ran too high. He also confirmed that this assault on his Father was in fact on two occasions separated by a few days.
48.He confirmed that he threatened to kill himself on one occasion during the parties’ relationship. He said that, looking back on that occasion, he behaved badly. He acknowledged that his actions would have terrified the Mother. His time in hospital afterwards assisted him, which included him seeing a counsellor. All of this aided him in the separation from the Mother.
49.The Father said that he had found “alternative directions” to assisting him in dealing with his “situations”, such as anger. It was then put to him that these new directions had not worked because the assessment by Dr C stated that the Father was an “angry, bitter person.” He said that this was incorrect; he was more frustrated and resentful of the situation that has engulfed him and the children. I am not sure that his situation improved much, if at all, by this self-analysis.
50.The Father contended that his level of resentment had diminished after the completion of an anger management course. He said that in the past, rather than discussion about issues (e.g. with the Mother and others) it usually felt like “accusations”.
51.He said he only learnt of the Mother’s multiple sclerosis condition through family friends. He said that it “hit him hard.”
52.He confirmed that he was taking anti-depressants, which were to help him deal with the stress of the proceedings and the death of a relative. He was referred to counselling but has not commenced it. He said he was trying to get back in touch with the “phone counsellor.”
53.He confirmed that he was content for the children to continue to live primarily with the maternal Grandmother. He said he would be content to communicate with her, perhaps initially via a “parenting app” and later, assuming things improve, over the phone and even a “normal co-parenting relationship.” He said that things had been difficult but he held no resentment now towards anyone. In my view, it seems that Dr C rather disagrees with this sentiment.
54.He said that he sees his son H (who was almost 16 months old at the time of the trial) almost every day. He said he is able to take him to the park and have him for 3 days per week or even 7 days, depending on H’s Mother’s schedule. He said that they just work things out regarding arrangements for H.
55.The Father said that when the children were with him they were well behaved. He said that the children have indicated that they want to spend overnight time with him.
56.He agreed that X is overweight, has eating issues and has problems with digestion. He also agreed that when he sent a letter in May 2016 requesting that the children spend time with him, he was working full-time and could not have actually cared for them at that time.
57.The Father said that at times during the relationship with the Mother he “had to be firm.” This was especially true regarding financial matters. After some further questions, he accepted that his conduct in this regard was inappropriate and unacceptable. He confirmed that he and the Mother had not spoken since July 2017.
58.He confirmed that during his relationship with the Mother he had, at times, punched holes in walls, and further acknowledged that this had a negative impact on the children.
59.There was a discussion with the Father about his financial support for the children. He said he pays $100 each fortnight for the contact centre, and that he has offered the Grandmother funds for the children’s clothes and shoes. This, however, seemed to be linked somewhat to the Father receiving medical and other information. The Father said that he had never been asked for money by the maternal Grandparents, nor had he been contacted by the Child Support Agency.
60.The Father was then taken through a litany of things he had broken or damaged during the relationship on various occasions. This list included a chair, a desk, a TV screen, the linen cupboard, and a bookcase.
61.The Father confirmed that he knew stress to be a trigger for the Mother’s multiple sclerosis, and that him spending time with the children was stressful for the Mother.
62.The Father said that his stress increases when he feels sidelined, or not listened to, or feeling unimportant.
Oral evidence of the Paternal Grandmother
63.The brief oral evidence of the Paternal Grandmother was as follows.
64.She confirmed that she was content to supervise the Father’s time with the children. She said that if the Father became angry he would remove the children from the situation. She said that the Father copes much better these days than he had formerly done. She further confirmed that she would go to mediation with the maternal Grandparents.
65.The paternal Grandmother said that if the children wanted to see the maternal Grandmother she would ensure this occurred. And if the children became too distressed she would return the children to her.
The Family Reports
66.The Family Reports of Dr C, dated 22nd December 2018, and 20th February 2019, became Exhibits A1 and A2.
67.From the first Report, I note the following matters. In doing so, it should be kept in mind that the Mother’s diagnosis of multiple sclerosis occurred after both Reports were prepared. The import of that diagnosis was canvassed with Dr C in his oral evidence, summarised later in these reasons.
68.After recording his concerns (par.29) about the “lack of flexibility and suspiciousness” of the maternal Grandparents towards the paternal Grandparents, and how such a situation is not in the children’s best interests (flexibility and trust between adults are, of course, necessary in dealing with children and their needs), Dr C noted (par.30) that:
… one of the characteristics of my interview with Mr Salway is his inability to take responsibility for any of his behaviours and to indicate that any time there was any criticism of his behaviour it was due to somebody else acting inappropriately.
69.In that section of his report regarding “parenting assessment”, Dr C noted (pars.32 – 37):
[32] Parenting Assessment. The grandparents say they have a lovely relationship with the children and they love the children and get on well with them. They say they have four other grandchildren and they have quite a different role in that regard. As the grandparents of Ms J’s children they act as grandparents although obviously with the grandchildren of Ms B Mattick they ended up by having to take on a parental role so there is some distortion in their relationship between the two sets of grandchildren.
[33] The maternal grandparents say the children are generally loving in regards to them. They call them Nan and Pop and the children like to have cuddles with them and they play around them. Sometimes after contact the children will have trauma related behaviour and X in particular likes to be stroked and generally gently massaged following contact. The children do engage in affection seeking and reassurance behaviour and as noted Y can switch her mood very quickly. I noted that in the preschool information as well. She noted that X was a particularly distractible child, and Y demonstrated symptoms of trauma when Y first came to live with them.
[34] Ms Mattick said that parenting was about establishing routines, holding family events and celebrations and creating a sense of family, and Ms Mattick noticed that both she and Mr Mattick had a child care background as occupations so there is substantial experience in both formal child care experience and having bought up her own children.
[35] Ms Mattick thought that her strengths of parenting were her love, her affection and her setting of parameters. She said they were motivated to do the best they could for the children, and try to provide as mush as they could for the children and normalise their situation. She did not think there was anything she would change about their parenting. She says they have seven grandchildren and have tried to be a positive influence on all of them. She referred to fun activities with the children and giving them a sense of having nice times.
[36] Ms Mattick says they remain on good terms with Ms B Mattick, and have always been focussed on providing support for her. She says that the children spend quality time with the children, but Ms B Mattick has her own life now. She has been attending some school events, and in holidays will spend some overnight time over a few nights with her and that is intended to be ongoing. Ms B Mattick continues to talk almost every day on the phone.
[37] Ms Mattick said the fortnightly visits continue to disrupt the children, with them demonstrating bad behaviours on their return. It is not clear why that is the case, Y has tantrums and I suspect she is probably experiencing some object loss but also not getting the level of affection she might be requiring from Mr Salway when she is with him (given my observations of him). Nonetheless Ms Mattick says that she does not get that stressed out by the children. However, she says that since my assessment Y has been refusing to go into her bed (a top bunk) and instead was sleeping in X’s bed (which was complex because X and Y clash). It is only been the last three days she has resumed sleeping in her top bunk but needs significant affection at these times.
70.Regarding the psychological functioning of the children, based on the psychometric testing, Dr C reported (pars.47 – 49) as follows (emphasis added):
[47] Y: A review of the validity scales indicated the profile appeared to be valid without obvious distortion. Y is reported to be a severely disturbed young girl with pathology in the acting out/defiant region with some sub-clinical concerns in mood and anxiety. She is seems as somewhat atypical at times in her behaviour, and lacking in adaptability and social skills. Generally such a profile suggests a child with significant psychopathology and behavioural disturbance who is in need of therapy and containment. The grandparents are clearly indicating that Y has been impacted by her environment to date and is quite psychologically vulnerable.
[48] Z: The validity scales were similarly in the acceptable range. Z is viewed significantly more benignly by the grandparents, who reported only mild (subclinical) issues in regards to some aggression. Generally Z was observed to be adaptive and resilient and within the range for behaviour of most children her age.
[49] X- The validity scales were in the acceptable range. Although the grandparents viewed X as a highly psychologically vulnerable child with her behaviour marked by some (sub-clinical) aggression there was also a significant risk for experiencing both anxious and depressive like behaviours. She as viewed as lacking some adaptability and social skills for her age, and generally a child who is likely, if untreated or if her environment did not change, likely to develop concerning psychopathology and childhood depression/anxiety.
71.In the course of Dr C’s discussion with and assessment of the Mother, he recorded her comments about features of the relationship with the Father, at pars.53 - 56:
[53] Ms B Mattick said that the children are with her parents because of the family violence that characterised her relationship with Mr Salway. She said that there was a lot of mental violence, but she also made reference to physical violence. She claims Mr Salway hit her and that he would break objects and furniture in front of her and the children, and would yell and scream a lot. She said he was a heavy drinker although she did not know if he had ever used drugs.
[54] When I began talking to her about her relationship with Mr Salway Ms B Mattick became quite distressed. She said she met Mr Salway in 2010 and at that stage she was 19 years old and she became pregnant quite quickly. She had not initially considered her relationship as long term but after she fell pregnant with X she felt she had to stay in the relationship. She reports getting extremely depressed after X was born and she got postnatal depression. She admits she could not cope and she would forget to do things. She said that she was reliant on her mother. She would ring her mother sometimes two or three times a night to get her assistance as Mr Salway would not help her and could not cope with her emotionality.
[55] Ms B Mattick said the violence in the relationship did not occur until Y’s birth in 2012. She is not sure why the violence began. They had just moved to a new house and Mr Salway had just got a new job. He appeared to be quite frustrated as he lost that job quite quickly. He had multiple financial pressures and Ms B Mattick was spending too much to make herself feel good. She had depression and she had two young children and it appeared that her behaviour deteriorated and Mr Salway’s response to that was to exert control and become violent. She said she was on medication since then, but she had stopped taking her medication six months ago as she feels that her coping has improved. She said that a lot of her fear disappeared once she moved away from Town A to Town D, although she still gets some traumatic symptoms when she had to drive back to Town A.
[56] Ms B Mattick claimed that when Mr Salway hit her he hit her with an open hand on two occasions. Mr Salway denies ever there being any physical violence on his part towards Ms B Mattick. She said that she would leave the relationship and he would threaten quite frequently to hit her, but stopped short of that. He was smashing the furniture, and he would punch holes in the cupboard doors. Allegedly he broke what appears to have been a DVD stack drive out of simply being incensed and she developed significant fear of him. It appears quite clear from the Victim’s Services material that is the case.
72.Dr C recorded (par.60) that the Mother started a relationship in 2016 with the Father’s cousin, who lives in Tasmania. She stayed with this person for approximately 3 months before returning to the Town A region. Since that time, she has formed another relationship with a person called Mr K. Mr K has a child, L, who he sees and spends time with each alternate weekend.
73.The expert’s observations of the children with the maternal family was as follows (pars.81 – 86):
[81] Observations with the Maternal Family. The observation of the children with the grandparents and Ms B Mattick was something of a chaotic affair. I undertook the observation first with the grandparents and then had Ms B Mattick come in. After a while I had the grandparents leave. When I observed Ms B Mattick with the children Mr K was present in the room.
[82] It was obvious from my observations that with all of the maternal family the children have a natural and quite convivial relationship. Everybody appeared to engage at some level with the children. X tended to be somewhat more contained and involved in her own stuff but she would easily relate to her mother and to her grandmother and at times also involved with Mr K. Mr K appeared to be quite calm and when the children wanted to interact with him he was responsive to them. The children appeared to have a good relationship with him.
[83] It did seem that the two youngest children were preferentially involved with their mother although when I saw the mother and the grandparents together Z would spontaneously seek cuddles from her Nan as well.
[84] The two youngest girls were generally involved in a happy boisterous play. Y tended to preferentially spend time with her mother although I note that X appeared at some points to be more engaged with her grandmother.
[85] After the grandparents left the children showed no distress at the grandparents leaving and they appeared happy to engage with their mother. They were somewhat more engaged with Mr K following the grandparents leaving and it seemed that the children were used to having multiple adults involved in their life. At this point Ms B Mattick was able to structure a game for the two older girls and I noticed that Z was seeking a lot of cuddles from her. The children’s behaviour did not change when there was only the mother and Mr K looking after them and they remained boisterous and loud. They worked well with the adults. At one point the mother had to take X to the toilet. Z at that point didn’t want to stay in the room with myself and Mr K and she seemed somewhat anxious but once I got the maternal grandparents back in to support the children whilst the mother was out of the room Z was quite comfortable and happy once again.
[86] It appears that on the whole the children particularly X and Y were able to show good perseverance of behaviour and they settled well with either of their grandparents or with their mother. The children seemed quite used to co-parenting arrangements between their mother and the grandparents.
74.Regarding his observations of the children with the Father, Dr C said (pars.87 – 91):
[87] Observation with the father. Y was particularly happy to see her father and the other children transitioned easily from the grandparents to come to the playroom. They did not have quite the same enthusiasm as Y but they seemed to be quite comfortable when they first met their father. They understood the routine of seeing their father in the Contact Centre as that is the usual environment where they see him. The children organised themselves with drawing very quickly. It appears that this is an activity that they typically do. Y revealed leadership confidence in her behaviour that had not been evident with her mother and with her grandparents. X was surprisingly quiet compared to how she was when she was with her mother and grandparents. She appeared more passive. The children appeared quite happy and wanting to promote a relationship with the father. The father is clearly used to the routine as well. X actually spent some time trying to engage with me, which I found interesting but Y and Z appeared to want to engage with their father avidly. X showed me, but not her father, her colouring in. The children were somewhat chaotic despite knowing what they were doing and being in some sense confined into a specific activity.
[88] The father’s behaviour throughout the contact was odd. He appeared to be somewhat flat and subdued. He appeared to take the form of a father who was assisting his children in an activity, although the activity was a fun activity he appeared to be more facilitating his children rather than engaging with them. However, I think that might be because this is the structure of the usual contact visits.
[89] I noted that Y told her father that her mother was in the building, and it seemed to me that Y was waiting to see what reaction the father would have. Mr Salway was suitably non-committal in his reply. Throughout this period of the observation, which lasted for 30 minutes, the children maintained the same activity, which was painting. Y was the last person to finish the activity when I said it was time to finish up. She appeared to be the most reluctant for the contact to end. The father demanded a kiss and cuddle before the children left and the children were quite happy to oblige him.
[90] From the father’s perspective this was a typical session. There was occasionally some sibling rivalry but generally they were well behaved and he noted that he had been coming to the Contact Centre with the children for a year now and it appears a well-organised typical behaviour occurred.
[91] I was somewhat concerned about X’s relatively subdued behaviour in the contact but Mr Salway appeared to think the contact was typical. This does suggest that X is somewhat more aware of or somewhat more cautious about the father than her comments to me had suggested.
75.Regarding his interview with the Father, Dr C reported as follows (pars.96 – 105):
[96] Interview with Mr Salway. Mr Salway presented in the interview as a somewhat terse young man. It was difficult to get a clear history from him. Whenever there were any difficulties in his history it was always somebody else’s fault and someone had done something to him. To that extent he appeared to either lack insight into his behaviour, or was simply motivated to avoid responsibility for it. He said he was in court following the separation in April 2016. He said Ms B Mattick had gone back to the grandparents for the 15 month prior to that because they couldn’t get accommodation together, because they had poor references. He said they had poor references because Ms B Mattick would not pay the rent. He said when he was working he would give money to Ms B Mattick to pay the rent and Ms B Mattick would spend it frivolously, and as a result they had a bad reputation in the housing market.
[97] Ms B Mattick lived away from him, with her mother, from 2014 to 2016. However, he considered the relationship was still ongoing but it ended once she decided to form a relationship with one of his cousins. He said he gave her an ultimatum that either she stops such behaviour or she was “out the door”. He said he does not accept that kind of sexual adventurism and he referred to Ms B Mattick going to Tasmania as her “abandoning” her children. He said that when she was in Tasmania she caused a lot of eruptions in the environment down there.
[98] Mr Salway said that Ms Mattick is quite controlling. He said that she initially had no problem with him seeing the children while he was working, but said that because he was working he could not have the children. He said that a letter was then contrived to give responsibility to the grandparents for the children. Initially, he could not remember when the letter was done although he did have a copy of that letter on his phone and noted that it was dated the 26th May 2016.
[99] Mr Salway says he wants unsupervised contact with the children and wants to take them to his family. He feels that Ms Mattick is quite unco-operative and alienating the children from the family. She will arrange things for the children without any reference from him. He said that Ms Mattick eventually stopped contact and stopped his parents from seeing their children after July 2016 when Ms B Mattick went to Tasmania. My understanding is that the grandparents felt that during this period of time that Mr Salway had been intimidating and problematic in his behaviour towards them.
[100] Mr Salway says he wants the children in his care. He said clearly “Ms B Mattick doesn’t want the children because she abandoned them in 2016 to go to Tasmania”. He said he is happy to share parental responsibility with Ms B Mattick. He said that all the things that have happened “occurred in the past” and he said we should just get along for the children. He is not concerned about what the children may have seen or heard in the past. He said the AVO was malicious and he agreed to it without admission. He denies this incident at the school and he said he was trying to say goodbye to X and the mother simply dragged her away by the arm. He just wanted to say goodbye. He said his parents were there and saw it all and hence he perceives that he has support for his view.
[101] Mr Salway appeared to be somewhat confused about the AVO situation. I noted that in fact the original AVO was not in relation to the school incident. This occurred in July 2017 and was in fact a breach of AVO. The original AVO was on the 18th December 2016. He said he recalled that. He said Ms B Mattick was claiming that he was harassing her but he said that all he was doing was responding to her texts to him and that she wanted to spend time with him. He said the whole thing was blown out of proportion. He said he would like to go to the school assemblies. He said of the incident in July 2017 that despite it being a breach of the AVO he wanted to see X get what he thought was an award.
[102] In regards to the alleged assault where Mr E assaulted Ms B Mattick in January 2016 he claims in fact that it was Ms B Mattick who instigated the assault by being critical and awful to Mr E. He claims that in fact she scratched Mr E and clawed him and that he simply tried to push her away from him, and that in the context of that she fell over and hit her head. He claims that there was a dispute between him and Mr E prior to that. It seems difficult to know what the truth of the matter is other than it does appear that there is an intemperate relationship between Mr Salway and Mr E.
[103] When asked about the alleged domestic violence in his relationship with Ms B Mattick Mr Salway said that he “gave what he got”. He accepts that he broke things because of his frustration and because Ms B Mattick would escalate problems. She would follow him around and nag him and he did not know how to resolve that so he would respond in anger. He denies that he ever hit her but said that a few times she pushed him around and he would get defensive and would grab her arm if she grabbed him.
[104] I notice that Mr Salway also had a previous AVO with his father 10 years ago. He said that he had an argument with his father and he claims that his father initiated the violence by trying to wrestle with him and that he hit his father in defence. Mr Salway denies any other AVOs and any other relationships. He said he has never really had any conflict with other relationships.
[105] I then took him to the issues in regards to Ms M. He said that relationship ended because of false allegations. He said Ms M was going through a family court issue with her child from her former partner and as a result there was a lot of tension in that relationship. I note in his comments recorded in the Contact Centre notes he blamed Ms M for being “hormonal”. He denies that there was any substance to the claims that Ms M appears to have made in her Facebook post. I note that he says that he has since developed an amicable relationship with Ms M. He has a child H with Ms M and he says he sees H frequently. He says that the only reason why Ms M wrote what she wrote in the Facebook was because she was attempting to denigrate him and she was a “great manipulator” and she was the person who was in fact in error in her behaviour. He says that Ms M has indicated that she doesn’t want to be part of his family court matter. He says the Department of Family and Community Services is not involved.
17. The Maternal Grandparents are reported as recognising and meeting the children’s needs, and acting in a protective manner (para 146). Dr C expressed some concern about their capacity to cooperate with the paternal family (para 141).
18. The Family Report concludes the children should remain living with the Maternal Grandparents, though there is potential for the mother to one day transition to being their primary carer. Dr C encourages the Orders to specify a minimum level of contact between the Mother and children and recommends this includes the children living with the mother for half the school holidays (para 142).
19. Dr C further recommended implementing a transition toward unsupervised contact, monitored by the paternal grandparents, between the Father and the children. He advised the current frequency should not change in the medium term, though there could be an ultimate goal of monthly overnight contact occurring at the paternal grandparent’s home.
Children’s Views
20. On 12 July 2019 the ICL interviewed the two eldest children, Y and X.
21. Y and X both expressed a desire to see more of their mother. X indicated she was excited to see her father outside the contact centre.
Defended Hearing Evidence
22. The parties and court expert gave evidence and were subject to cross-examination in the Defended Hearing held on 15, 16 and 17 July 2019.
23. When asked if he supported the children living with the Father, Dr C’ response was ‘not at all’. Dr C’ affirmed it was difficult to contemplate the father having parental responsibility as he is not mature and does not understand the children’s needs.
24. When asked if the father posed an ‘unacceptable risk’, Dr C noted this was not the term he had used. Dr C supported unsupervised contact between the father and children only if the father could demonstrate capacity to be a reasonable and supportive parent.
25. Dr C expressed concern about the Maternal Grandparent’s defensiveness and recommended no face-to-face changeover occur between the Maternal Grandparents and the father.
26. Dr C stated that the children are more vulnerable than average children, and need to be more psychologically robust. The children require good cooperation between their caregivers. On Dr C’s evidence, Y is more psychologically vulnerable than Z, and increases in contact with the Father would need to be slow.
27. His Honour Judge Neville noted it would be difficult to close the door on the Father having time with the children.
28. In cross examination, the Maternal Grandmother reiterated her position that the Maternal Grandparents have shared care with the Mother. Her concern about the children being with the father was related to his anger management problems.
29. The Mother, in cross examination, confirmed she is seeking reassurances from the father, including regarding counselling, anger management, parenting courses and psychological assessments. For the Mother, the end goal was unsupervised time between the children and the father. She was uncertain regarding overnight time, due to the children’s complex needs.
30. In his evidence, the Father admitted to a series of family violence incidents. He acknowledged the programs and counselling he had and would engage with, and indicated he had learnt about anger management.
The Statutory Regime
31. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(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).
32. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
33. However s 61DA(2) provides that 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.
34. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
35. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child and make a genuine effort to come to a joint decision about that issue.
36. Finally s 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. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.
37. The ICL would submit that this is not a matter where the pathway set out in s.65DAA necessarily applies. Given the circumstances in which there is an alleged history of family violence between the mother and father, and the children have lived with the Maternal Grandparents since 2016, the ICL submits it is not in the best interests of the children for the parents to have equal shared parental responsibility.
Conclusion
38. The ICL submits that the orders that best promote the long-term interests of the children are as set out at 8.
39. It is the ICL’s submission that it is in the children’s best interests to live with the Maternal Grandparents, and for the Maternal Grandparents and Mother to have equal shared parental responsibility. It is in their best interests to spend increasing time with their father, progressing to overnight time within nine months, so they can maintain a meaningful relationship with him and his family.
Consideration and disposition
110.In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[3]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[3] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
111.Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined various other points of reference. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[4]
[4] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
112.In applying these principles, I remind myself in particular of the terms of s.60CC(2) and (2A), which are as follows (emphasis added):
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).
113.In general terms, and without setting them out, in relation to the Court’s protective responsibilities I also remind myself of the principles outlined by the Full Court in Slater v Light regarding the relevant assessment of “risk”.[5]
[5] Slater v Light (2013) 48 Fam LR 573 at [34] – [40].
114.In addition to these comments, it is useful to recall some earlier comments by the High Court in AMS v AIF, albeit in a different legislative context. For example, in that case, Kirby J simply observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[6] In my view, the same sagely simple comment applies essentially to all parenting cases, irrespective of whether or not there is an application regarding “relocation.”
[6] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
115.In the same case, Hayne J said (internal citations omitted):[7]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[7] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205].
116.Respectfully, the comments of Hayne J are especially apposite in almost all parenting cases. They apply, and are particularly relevant, to the matter currently before the Court, which has, to say the least, much “variety and complexity.”
117.By reference to the prescribed but rarely straight-forward legislative scaffold or pathway in Part VII of the Act, I note the following matters from the evidence. I follow sequentially, without necessarily naming, each of the considerations in s.60CC(3).
118.Given the formal assessment, supported by the comments of many of the parties, of the children being “vulnerable”, particularly given their exposure to domestic violence, and given their still young ages, it is difficult to place very much weight on their views, such as they have been expressed.[8] Such views that have surfaced suggest that the three girls are content to see and spend time with their Father but remain reserved, to varying degrees, of doing so. Their place of comfort and security is plainly with the maternal Grandparents. Unless and until there is some detailed agreement, or necessity, for relevant change, that residence must and will remain the primary residence of the children.
[8] Although now a little dated, I note the concerning behaviours of X and Y upon attendance with their counsellor that are recorded in the email, dated 26th October 2018, which became Exhibit B.
119.I accept the evidence, in its varied nature, relating to the children’s relationship with the parties, and others. Summarised, it is as follows:
a)The girls have a good and close relationship with their maternal Grandparents, and with their Mother;
b)The girls’ relationship with the Father, from their perspective and from his, is reasonably good and familiar but reserved on all sides for the reasons given by, among others, Dr C. Patently, on the evidence of Dr C, and even on the Father’s own account, he needs significant growth and assistance to develop his parenting skills;
c)The girls, as yet, have little, to no, relationship with their sibling, H. This needs to be remedied;
d)The girls’ relationship with the paternal Grandparents needs significant work, as does the relationship between both sets of Grandparents.
120.In relation to the considerations set out in s.60CC(3)(c) and (ca), the following may be stated by way of overview.
121.Both parents, in different ways, have significant parenting deficiencies. Many of these have come from their young ages, lack of life experience, and the tensions and difficulties during the relationship. Among many things, the account in Dr C’s first Report regarding what the maternal Grandparents faced in the parents’ residence is alarming. The state of disarray, disorder and in some instances lack of hygiene, was very concerning. It seems not disputed that the Mother regularly, and often many times each day, sought and received assistance from the maternal Grandmother. The Father seemed to dispute, only in degree, that he often spent much time engaged in playing the XBox and similar gaming distractions.
122.In my view, the Mother showed somewhat similar degrees of immaturity and lack of responsibility when she moved, temporarily as it turned out, to Tasmania to pursue a relationship with the Father’s cousin, and left her three young children behind. It appeared that her own interests took precedence over those of the children.
123.In almost all respects, these young parents have been effectively and regularly “missing in action”, while it has been left to the maternal Grandparents (the maternal Grandmother in particular) to right a badly listing (if not sinking) ship. They have nurtured and protected the children while others have gone about on their various frolics.
124.Added to all this is the serious, ongoing medical situation now confronting the Mother, as well as the geography of her (and her new partner, Mr K) living in Town D – about one hour’s drive south of Town A.
125.Regarding sub-paragraph (d), the evidence is clear that (i) the children are well settled and cared for with the maternal Grandparents, (ii) the Mother’s medical and other issues, certainly at this time and for the foreseeable future, preclude the children living primarily with her (and Mr K, who sometimes has his child with him), and (iii) the Father still has much work to do in relation to his parenting skills and his relationship with the children. On the evidence, the Court cannot and will not countenance any change in the primary care and residence of the children. To do otherwise would put vulnerable young children at risk.
126.Similar considerations to those already mentioned are relevant to the considerations set out in sub-paragraphs (e), (f), (g) and (i). This is to say that the following aspects from the evidence are relevant to the matters to be considered here:
a)It is a clear practical and logistical consideration that the Mother (and her partner Mr K) lives in Town D. As already noted, it is approximately a one hour plus drive between the Mother’s residence and that of the maternal Grandparents. While not a huge distance, it remains a practical consideration;
b)The obvious and ongoing tensions between all of the adults involved remains a factor regarding the difficulties and or lack of communication between them;
c)In my view, it is also a consideration generally to recall that the maternal Grandparents are the ones effectively keeping all the chess pieces on the board. There is little, if any, respite for them. Given the Mother’s compromised health, it is likely that the maternal Grandparents will be transporting the children, on a round trip of course, to see their Mother, perhaps every second weekend. If it ultimately be the case, for example, that the children spend time with the Mother every second weekend (including travel to and from Town D– twice), and if the children spend time with Father every second weekend (as proposed by the ICL), every weekend – potentially – it would mean that the maternal Grandparents and the children will travel somewhere each weekend. This is likely not to be in anyone’s best interests. It will require some further discussion between the adults but especially between both sets of Grandparents and the Father;[9]
d)The compromised parenting capacities of the parents, outlined regularly in the course of the hearing and set out in Dr C first Report, are clear and relatively undisputed. It is likewise clear and relatively undisputed that the maternal Grandparents provide an ordered, secure and supportive environment for the girls. These factors require the Court to be scrupulously careful to maintain, as far as possible, a delicate balance. These young, vulnerable children need to be protected; they also need to be in a supportive environment. Their environment needs to enable them to continue in their healing process from the disordered, fragile and sometimes frightening existence when they lived with their parents. Their parents are also, in my view, vulnerable who similarly need to be in a supportive and healing environment;
e)I have already noted the range of issues that beset both young parents. These include the compromised health of the Mother, and the range of parental deficits of the Father, which may, over time and with significant assistance, be rectified. Much remains to be done by both parents, to the degree that each of them is capable of addressing them. Their respective physical circumstances of the parents (including the geographical distance from the children) may, ultimately, determine what happens in relation to the time-with arrangements for the children.
[9] In passing I should note formally that some, if not many, of the proposed Orders will necessarily be somewhat problematic for a time until the passing of relevant travel and other restrictions for health reasons.
127.Regarding the matters to be addressed by sub-paragraph (j), I note the following.
128.Although there were attempts by the Father during the hearing to minimise the nature and degree of family violence, it was clear on the evidence that the children (particularly the eldest) were exposed to various and random acts of domestic violence during the relationship. It has scarred them, as Dr C recorded in his first Report. The Father’s admissions of the furniture he broke and the damage he caused to the family residence, in my view, were made with a degree of grudging acknowledgement of the adverse impact it had on the children who were present at the time. He showed little insight at the time, and since, as to how emotionally and psychologically damaging such violence is to adult victims, and especially to the psyche and well-being of children, particularly when they witness such actions. In my view, the Father still has much work to do on these matters, and his parenting skills more generally.
129.The Orders set out below, in my view, are the least likely to lead to any further litigation – to the degree that the Court can opine with any accuracy on such matters.
Conclusion
130.All of the following comments are subject to current and ongoing health and isolation constraints issued by relevant authorities, including any treating health care professionals for the children and any of the parties.
131.In my view, it is in the children’s best interests for them to remain in the primary care and residence of the maternal Grandparents. Those Grandparents shall share parental responsibility with the Mother, to the degree that her health does not relevantly compromise her capacity to exercise that responsibility. If at any time her heath is so compromised, the maternal Grandparents shall have sole parental responsibility. Upon her confirmed recovery, the Mother and maternal Grandparents shall resume equal shared parental responsibility for the children on the terms already indicated.
132.Further, and however unlikely, if there is any impasse in reaching agreement between the Mother and the maternal Grandparents, the maternal Grandparents shall have the final decision-making responsibility.
133.The maternal Grandparents are to communicate with the Father regarding any major long-term issues for the children. Preferably such dialogue shall be before any relevant decisions are made. I will leave it to the maternal Grandparents and the Father to work out what is the best means of such communication (e.g. facilitated monthly parenting meeting, email, etc). For my part, absent situations of emergency, I would think that SMS messages, and or via a “parenting App”, over major issues would not be appropriate.
134.Absent any agreement in writing between the maternal Grandparents and the Mother, the children’s time with the Mother shall be each alternate weekend. Pick up and drop off times are to be arranged between the Mother and her parents.
135.The Father’s time with the children shall be as follows:
a)First Stage: for the next 3 months (from the date of these Orders) supervised at the Town A Children’s Contact Centre with such supervision being paid for by the Father;
b)Second Stage: then, for a period of six months, the Father’s time with the children shall be supervised by either (or both) of the paternal Grandparents. It shall occur each alternate weekend, on either Saturday or Sunday, for a period of 3 hours, either 10am until 1 pm, or 1pm till 4pm. Relevant arrangements (including changeover, including location) for this are to be determined between the paternal and maternal Grandparents (the Father, of course, may be, and presumably will be, consulted);
c)Third Stage: for a period of 3 months, supervised by either (or both) of the paternal Grandparents, each alternate weekend for a period of six hours (times, and arrangements for changeovers, to be agreed between the maternal and paternal Grandparents);
d)Fourth Stage: for a period of 6 months, supervised by either (or both) of the paternal Grandparents, each alternate weekend from 10am Saturday until 1 pm on Sunday;
e)Fifth Stage: for a period of 6 months, with occasional “check-in” supervision by the paternal Grandparents, each alternate weekend from 10am Saturday until 4pm Sunday;
f)Sixth Stage: absent any other agreement in writing between the parties, thereafter each alternate weekend from after school on Friday until 5 pm Sunday.
136.Prior to any of the Father’s time with the children supervised by the paternal Grandparents (the Second Stage), they are to file with the Court undertakings in relation to their responsibilities as supervisors to protect the children above all else.
137.If, at any time, there is an established breach of these Orders (which also includes any criminal proceedings, including for example any Final Apprehended Domestic Violence Order) against the Father, his time with the children shall be suspended save for his time to be supervised at the Town A Children’s Contact Centre, and the cycle of these Orders shall re-commence. Thereafter, the “stages” of increased time shall re-commence and proceed as per the Orders for subsequent Stages.
138.The Father shall be at liberty to access any medical or school records and notices regarding the children.
139.And as proposed by the ICL, the Father is to (i) engage with the children’s paediatrician and counsellor/psychologist, and (ii) maintain psychological counselling for himself on a regular basis for the next 3 years, for a minimum of 2 sessions each year.
140.The Father is to participate in a parenting program. At least 2 of these programs, which are to be undertaken each year for the next 3 years, are to include “anger management” components. The Father is to provide the Court, all parties, and the ICL, with confirmation of his completion of these courses. Likewise, he is to provide the Court, the parties and the ICL, with a letter every six months from his counsellor regarding what has been addressed and what progress has been made. If there is no compliance with these Orders, then his time with the children shall revert to Stage 2 and the cycle of progression shall resume from that Stage.
141.Because of the circumstances of these Orders, in my view, the terms of s.65DAA have little application. This is for the obvious reason(s) that, for all intents and purposes, and although technically shared with the Mother, ultimately the maternal Grandparents have an Order for sole parental responsibility. They are simply required (and doubtless would do so anyway) to discuss any relevant decisions regarding the children with the Mother. In fact and in reality, they will make all relevant decisions for the children.
142.One final observation: the Orders of the Court are necessarily prescriptive. They are not, however, exhaustive. The children are still quite young; the parents are young. Everyone is heavily dependent upon the respective Grandparents, most especially the maternal Grandparents. Clearly, the Grandparents, on both sides, hold the key to the Orders working. Indeed, as a suggestion only, given how the respective Grandfathers have indicated a willingness, or at least less difficulty, to communicate, for example, directly with the Father, in my view, it is more likely that the Orders will work and other matters will be able to be agreed, if the Grandfathers discuss any outstanding issue before it escalates into something larger and more difficult. Over time, assuming this level of informality works, a more co-operative, wider working relationship, with greater levels of trust, is likely to develop. It will take time and effort on the part of all, making sure that the primary focus is always on the best interests of the girls.
143.In my view, these Orders are in the children’s best interests, especially having regard to the Court’s over-riding protective responsibilities towards the children under s.60CC(2A).
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge WJ Neville
Date: 9 April 2020
Key Legal Topics
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Family Law
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Jurisdiction
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Procedural Fairness
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Remedies
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