Morison and Chambers & Anor

FAMILY COURT OF AUSTRALIA

MORISON & CHAMBERS AND ANOR

[2016] FamCA 86

FAMILY LAW – PRACTICE & PROCEDURE – Where the proceedings were originally between the applicant mother and first respondent father – Where the second respondent maternal grandmother later joined the proceedings – Where the mother’s application was dismissed at the commencement of the trial for want of prosecution – Where the mother did not oppose this course and remained present throughout the trial

FAMILY LAW – CHILDREN – Best Interests – Where the children do not presently have a meaningful relationship with the mother – Where the children’s most important relationships are with the father, his wife and the maternal grandmother – Where the evidence overall regarding the father’s household does not amount to conduct which would subject or expose the children to abuse, neglect or family violence – Where the maternal grandmother was more focused on gathering evidence than on protecting the children – Where the best interests of the children call for them to continue to live with the father – Children to live with the father – Children to spend each alternate weekend and school holiday time with the maternal grandmother – Father and maternal grandmother restrained from allowing the children to spend unsupervised time with the mother

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother presently lacks capacity to make decision in the long-term interests of the children – Where the father has effectively had sole parental responsibility – Where shared parental responsibility between the father and the maternal grandmother would be ineffective no matter where the children were living – Where in these circumstances it seems more appropriate for the father to continue to have sole parental responsibility with reporting responsibilities to both the mother and maternal grandmother

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT:

Ms Morison

FIRST RESPONDENT:

Mr Chambers

SECOND RESPONDENT:

Ms Watson

INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

FILE NUMBER:

NCC

1459

2011

DATE DELIVERED:

19 February 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

1-4 February 2016

REPRESENTATION

APPLICANT:

In Person

FIRST RESPONDENT:

In Person

COUNSEL FOR THE SECOND RESPONDENT:

Ms Flintoff

SOLICITOR FOR THE SECOND RESPONDENT:

Flintoff Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

Orders

That all prior parenting Orders relating to the children B born … 2010 and C born … 2012 are discharged.
That the children live with the father.
That the father have sole parental responsibility for the children.
That the father shall keep the maternal grandmother and the mother advised, in writing (including electronic writing), of the following matters:
4.1Any change to his residential address and contact details;
4.2Hospitalisation; specialist medical treatment and serious ill health of either child;
4.3The school/pre-school in which the children or either of them is enrolled;
4.4The general practitioner which the children attend.
That the father shall authorise the school/pre-school which the children attend to release to the maternal grandmother and the mother copies of all documents relating to the progress and welfare of the children, including but not limited to, academic reports, school newsletters and applications for school photographs.
That the father shall do all acts and things necessary to ensure that the review of the Educare Assessment of B [at age 6] includes all relevant information from:
(a)Himself, with particular reference to history of mental health and drug use and current drug and alcohol counselling;
(b)The maternal grandmother;
(c)The mother (if she wishes to participate), with particular reference to history of mental health and drug use;
(d)The pre-schools currently and formerly attended by B.
and shall provide contact details to the National Disability Insurance Agency of the maternal grandmother and mother for that purpose.
That the children spend time and communicate with the maternal grandmother as agreed between the father and the maternal grandmother and failing agreement as follows:
7.1Until both children are enrolled at school:
7.1.1Each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday, commencing Friday 26 February 2016;
7.1.2For up to four periods of one week (not including Christmas Day) in each calendar year, with dates to be proposed in writing by the maternal grandmother not less than four weeks in advance of each holiday period.
7.2Commencing in the year C starts school:
7.2.1During school terms on each alternate weekend;
7.2.2For one week of the first and third school holiday periods;
7.2.3For two weeks in the Christmas school holiday period commencing on Christmas Day at 2.00 pm in each alternate year and on the second Saturday in January in each other year; and
7.2.4By weekly telephone call at any reasonable time.
7.3The maternal grandmother may, subject to the authority of the pre-school/school, attend all events to which parents and grandparents are invited, including but not limited to, concerts, sports carnivals, Open Days and Grandparents’ Days.
7.4Changeovers for time between the children and the maternal grandmother shall be at McDonalds Suburb D, unless otherwise agreed.

Restraints

That the father is restrained from allowing unsupervised contact between the children and the mother.
That the maternal grandmother is restrained from allowing unsupervised contact between the children and the mother.
The maternal grandmother is restrained from taking photographs of:
(a)The genitals of the children or either of them; and
(b)The children when they are naked.
The maternal grandmother shall, other than in a genuine medical emergency, take the children to the general practitioner nominated by the father in accordance with Order 4.4.
That the maternal grandmother shall keep the father advised of any change to her current residential address and contact details.
That the mother shall keep the father advised of her preferred address (including electronic address) for receipt of information pursuant to Order 4.
The father has leave to provide a copy of these Orders and Reasons for Judgment to his General Practitioner and to any Drug and Alcohol Counsellor to whom he is referred.

IT IS NOTED that publication of this judgment under the pseudonym Morison & Chambers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1459 of 2011

Ms Morison

Applicant

And

Mr Chambers

First Respondent

And

Ms Watson

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

These are competing applications by a father and maternal grandmother for parenting orders, in respect of two children, girls aged five and almost four years.
The proceedings were commenced in the Federal Circuit Court and transferred to this Court in March 2015.

The father

The father, aged 25, is the first respondent. He is married to Ms Chambers (“Ms Chambers”). They have one child together, E, aged almost 2 years.
The subject children live with the father. By court order, he and the children presently live with the paternal grandparents. The children also stay for 2-3 days per week with Ms Chambers and E.
The father is the recent lessor of the house owned by the Department of Housing in which Ms Chambers and E live. His wish is to reunite his family if the outcome of these proceedings permits that course.
The proposal of the father, formulated before the maternal grandmother became a party, was for sole parental responsibility and residence with him. The father, at that time, proposed defined time with the mother, conditional upon her undergoing a psychiatric assessment and attending regular counselling sessions with a mental health practitioner.
His ultimate proposal, formulated for submissions in these proceedings, was:[1]
a)Residence with him;
b)Equal shared parental responsibility for the parents;
c)Daytime weekend contact for the children with the mother, supervised by himself or a nominee; and
d)Time for the children with the maternal grandmother each alternate weekend.
[1] Exhibit 17

The Maternal Grandmother

The second respondent is the maternal grandmother, aged 49.
She is in full time employment. She lives alone but has had a committed relationship with her current partner, since mid-2012.
The maternal grandmother proposes to take leave from work for a month, or longer if necessary, to settle the children in if they come to live with her. Thereafter she would work reduced hours.
After separation of their parents in 2012, the children spent time with the maternal grandmother by arrangement with each of the parents.
The maternal grandmother became a party to these proceedings in August 2014. Thereafter, by consent Order, the children spent time with her each alternate weekend.
Since January 2015, by Order, the children have spent every weekend with the maternal grandmother.
The ultimate proposal of the maternal grandmother was in accord with the orders contained in her Amended Response:
a)   Residence with her;
b)     Sole parental responsibility;
c)     Time with the mother for two hours each alternate weekend, supervised in a Contact Centre; and
d)     Time with the father for two hours on the same weekends as the mother, supervised in a Contact Centre.

The Mother

The mother was the applicant, aged almost 24 years.
Her application was dismissed at the commencement of trial for want of prosecution.
There was no direct evidence of her circumstances. There was evidence given by other parties, and some tendered, which refers to a history of drug use, including Ice, long term behavioural and psychological problems since childhood, unstable accommodation and a tendency to violence.[2]
[2] Exhibits 11,12 and 13
The children have not regularly spent time with the mother since mid-2014, although they have seen her on occasions by arrangement.

History of Relevant Events

The parents began living together, both aged 18, early in 2009.
Their first child B was born in 2010.
The parties’ relationship was marked by violence, mainly by the mother towards the father. Police were called. They moved apart more than once in the first half of 2011, the child remaining with the father during those times.
In June 2011 interim parenting orders were made by consent for B to live with the father and spend time with the mother. Soon after, the parents reconciled.
In August 2011 all outstanding applications were dismissed and the interim residence order discharged.
The parents conceived a second child, C, who was born in 2012.
Within two months the parents had separated on a final basis.
In July/August 2012 the father formed a relationship with his now wife, Ms Chambers. She has one child from a prior relationship, a son, F, who was two-and-a-half years old and living with her when that relationship began.
Until January 2013 there were various parenting arrangements by agreement between the parents, including shared care on a four day cycle for 4-5 months.
By January 2013 the children were in the full-time care of the father.

Current litigation begins

On 15 January 2013 the mother filed an application in the Federal Circuit Court for the return of the children to her by way of Recovery Order and thereafter residence. She proposed substantial defined time with the father.
Ten days later, on 25 January 2013, interim Orders were made by consent between the parents for the children to live with the father and spend defined time with the mother.
In 2013 the father and Ms Chambers were married.
In May 2013 the children were present when the maternal grandfather punched the mother in the face. This incident took place at around the time when the mother apparently disclosed to the maternal grandmother that she had been “introduced to ice”.[3] I am unable to conclude whether those two matters are related. Both children were affected, but the evidence supports a finding that B was traumatised by this violent event.
[3] Affidavit of the maternal grandmother filed 23/12/2015, par 26
On 2 August 2013 further interim Orders were made by consent changing arrangements for time between the children and the mother to take place on alternate weekends, in the home of the maternal grandmother.
In late 2013 the mother apparently entered residential rehabilitation. She left the centre, re-admitted herself and left again. During that time the mother tested positive for a variety of illicit drugs.
On 30 January 2014 Orders were made varying time for the children with the mother. Previous Orders were suspended. Further Orders were made requiring supervision by the maternal grandmother. The Orders noted that the mother was in full-time residential rehabilitation and that the father was intending to visit the centre to see if it was suitable for the children to visit the mother there.
On 8 March 2014 the mother was involved in an incident of mutual physical violence with her then partner, who she had met in the centre.
In April 2014, E, the child of the father and his wife, was born.
In May 2014 the father, Ms Chambers and the four children were evicted from their rented house for non-payment of rent. They moved across the street to live with a friend of the father’s. The father concedes that he smoked marijuana with this friend in the shed. Ms Chambers did not approve of the friend or the smoking activities. After two months they moved out of that property.
Thereafter from July 2014 to date, the father says he has not smoked marijuana. Ms Chambers corroborates that evidence. There is no evidence or complaint to the contrary. It is also true that the father has not undertaken drug screens.
On 16 June 2014 further interim consent Orders were made for time between the children and the mother, supervised by the maternal grandmother, each alternate weekend. This arrangement quickly broke down. The mother became easily frustrated and angry with the children and resented her mother intervening.[4] Indeed she resented supervision.
[4] Affidavit of the maternal grandmother filed 23/12/2015, pars 42-47
In July 2014, the father, Ms Chambers and their four children moved to stay with a friend of Ms Chambers. This friend was Ms G, her partner, and their three children. This proved to be disastrous. There were then four adults and seven children under five in the household.
Ms G freely conceded in the witness box that she had not approved of the marriage of her friend to the father, and that she had agreed to their staying in her home in order to help them; by which she clearly meant teaching them ways to be better parents from her own perspective.
On 29 August 2014 the maternal grandmother was joined by consent as a party to the proceedings. She explained that her motivation to be joined was that she had not understood that her time with the children would only be in the context of supervising the mother. She wanted independent time with them.
Orders were made for the children to spend time with:
a)The maternal grandmother each alternate weekend (the father regarded this arrangement as the children spending the time which they would otherwise have spent with the mother); and
b)The mother for two hours each alternate weekend, supervised at H Contact Centre.
From that time the children have spent minimal time with the mother. The Contact Centre was never utilised.
In September 2014, after 2-3 months of escalating tension and conflict in

Ms G’s household, the father and his family moved out.
Thereafter Ms G contacted the mother and Mr I, the father of the child F. She made allegations that the father had verbally and physically assaulted the subject children and F when they had been in her home. The repercussions of her actions have been unfolding since.

The maternal grandmother makes contact with Ms G

In October 2014 the maternal grandmother made telephone contact with

Ms G. The information she was given is reported in her affidavit.

Ms G and the maternal grandmother had not met and did not do so until the hearing. They spoke only once.
Solicitors for the maternal grandmother made contact with Ms G who gave instructions for an affidavit.
There is no evidence of a report to the Department of Family and Community Services (“the Department”), police or any other institution by the maternal grandmother despite the alarming nature of what she was told. Nor did she contact the father to discuss the matter with him and get his version of events.
The maternal grandmother deposed that Ms G informed her:[5]
[B] gets picked up and thrown on the tiled floor. [Ms Chambers] smacks [B] with a wooden spoon. They do not change the girl’s nappies. I would leave the house and [B] would be dressed in pants but when I would return home she would be dressed in a nappy again. [Ms Chambers] was trying to toilet train [C]. [C] had a series of accidents and pooed her pants. [Ms Chambers] took her pants off her and rubbed these in [C’s] face. [Ms Chambers] was screaming at her.
[5] Affidavit of the maternal grandmother filed 23/12/2015, par 40
Despite asserting that she felt “horrified” and “sick” and “very worried for the safety of the children” the maternal grandmother took no protective step.[6]
[6] Affidavit of the maternal grandmother filed 23/12/2015, par 41
One possibility is that the maternal grandmother thought the stories far-fetched, but it was convenient to use the information and the willingness of

Ms G to get involved in the court case. She does not appear to have reflected on the range of possible reasons for that willingness.
I am supported in this view by the fact that there were no complaints of apparent injury, illness or distress for either of the children by the maternal grandmother, who was seeing them each alternate weekend throughout the period they lived in the home of Ms G (July to September 2014). Logically she must have doubted what she was hearing, which did not accord with her own observations.
I conclude that the maternal grandmother was focused on gathering evidence and not on protecting the children.
One consequence of the activities of Ms G was that an order was made in proceedings between Ms Chambers and Mr I that F live with his own father and not be brought in contact with the subject father in these proceedings, pending final hearing in the Federal Circuit Court.
Ms G provided an affidavit in support of the case of the maternal grandmother and an affidavit for Mr I in the other proceedings. I will refer to her evidence, which I concluded was unreliable, later in these reasons.

Father undertakes to live with the paternal grandmother

On 21 October 2014 the father apparently gave an Undertaking to the Court to live with the paternal grandmother[7]. I have been unable to find a reference to this Undertaking in the orders but do not doubt it was given.
[7] Family Report in Tallis & Carmody [2014] FCCA 2459, par 40
The father continued to spend time with his wife and E, seeing them and staying with them 2-3 nights per week. It was an awkward situation.
On 11 November 2014 an interim Order was made for the father to “continue to reside with his mother”.[8]
[8] Order 1 made 11 November 2014
On 24 November 2014 B was seen for the first time for assessment by Educare Specialist Services (“Educare”). The father had raised $800 for the assessment.
His concerns, which gave rise to the assessment, are reported as follows:[9]
[B] was referred by [the father] because of lack of concentration and being easily overwhelmed as well as attention-seeking behaviours, strong tantrums and acting like a baby …
[9] Exhibit 7 (Educare Report page 2) and Exhibit 8 (Referral from Dr M)

On 11 December 2014 the interviews for a Family Report took place. The mother chose not to attend the interviews.
On 18 December 2014 the Family Report was released. The Family Report recommended a change of residence for the children to the maternal grandmother. If the Court found the father represented a risk of harm to the children, no time with him, otherwise alternate weekends and holidays.
On 22 December 2014 B was seen again by Educare.
In January 2015 the father and his wife separated. They remained apart for 2-3 months.
On 22 January 2015 Orders were made that the children spend every weekend with the maternal grandmother. Further, that the father “must remain living with the paternal grandmother”.[10]
[10] Order 2.4 made 22 January 2016
On 29 January 2015 B was seen for the final assessment by Educare.
On 19 February 2015 the Educare Assessment concluded that the following diagnoses were made for B:[11]
a)   Autism Spectrum Disorder;
b)     Disinhibited Social Engagement Disorder;
c)     Generalised Anxiety Disorder; and
d)     Attention Deficit Hyperactivity Disorder.
[11] Exhibit 7 (page 1)
Educare recommended that the father apply for funding through Easylinks for provision of therapeutic services for B. The father did so.

Transfer of proceedings

On 30 March 2015 the proceedings were transferred to this Court.
On 31 March 2015 there was an incident between the father and his wife after each had gone to their respective homes after a birthday dinner with the children. The father was hoping for reconciliation. Ms Chambers contacted police and reported being harassed. The father put the children in the car at 9:30pm and drove over to the relevant police station where he and his wife had an emotional discussion.
Thereafter they reconciled and have remained united since.
In July 2015 the father and the children were interviewed and observed for the preparation of a Family Report in the matter involving the father’s wife and her former partner. One of the recommendations in that Family Report resonates with the actions of the parties in this matter and highlights the pressures under which they were operating:[12]
If the Court considers that [F] is at an unacceptable risk from [the father], then the current restrictions should continue. It is noted that under such circumstances, [Ms Chambers’] ability to protect [F] from such a risk must come under significant question. If however, the Court finds that [F] is not at an unacceptable risk from [the father], it is recommended that all restrictions be removed.
It is recommended that provided the Court does not consider that [F] would be at an unacceptable risk in his father’s household, then at least until [Ms Chambers] has established appropriate accommodation for herself and her children, [F] continue to live predominately with [his] father. This recommendation is based on the mother’s current extremely cramped and difficult living arrangements.
[12] Exhibit 3 (Family Report in Tallis & Carmody [2014] FCCA 2459, pars 137-138)
On 10 August 2015 directions were made in anticipation of the hearing in this Court.
In November 2015 the father was notified that he had been allocated a house by the Department of Housing in J Town. His name had been on the waiting list for five years. The father let the maternal grandmother know.
The solicitors for the maternal grandmother directed the father to comply with the Order to live with the paternal grandmother and advised him that he would be in breach of the Order by moving.[13]
[13] Affidavit of the maternal grandmother filed 23/12/2015, Annexure G
The father arranged for his wife and their son to move into the property. He and the subject children stayed there 2-3 nights through the week. F spent time with his mother on weekends there, in the absence of the father, in compliance with relevant orders from the other proceedings.
The father was sharply criticised for living the way he has. I am not convinced that any criticism was justified. The Orders for the father to live with the paternal grandmother was not in any sense an order for supervision of the father. One order followed on from his Undertaking, made to ensure stability of accommodation, and was simply continued in a further order.
The father has not been legally represented. This is another example of the disadvantage that has proved to be for the father. An application to be released from his Undertaking and to discharge the order would likely have been successful given the character of the housing on offer.
Faced with the dilemma of how to be with his wife and three children, and with the support of his parents, the father chose the course outlined.

Final hearing

The matter was re-listed on 21 January 2016 by the Court as a result of non-compliance by two parties with trial directions.
The mother appeared, conceded she had no evidence to support her application, and asked for the matter to proceed on the allocated dates.
The mother did not file a trial affidavit of herself or any witness. She had filed her sole affidavit with her Initiating Application in January 2013.
The father had not filed trial affidavits but had prepared and served drafts of affidavits of himself and his wife. His mother had filed an affidavit. The father was given leave to file an affidavit of himself and his wife on the first day of trial.
On the first day of trial, the application of the mother was dismissed. The mother did not oppose this course. She remained present throughout the proceedings, representing herself.
As foreshadowed the father was given leave to file affidavits on the first day of trial. The father represented himself.
The father produced the plan for B from the NDIS (National Disability Insurance Agency). It was very recently received. The plan set out the services and funding available for 12 months with a nominated review date in

12 months.[14]
[14] Exhibit 16 (NDIS 22/01/2016)
The maternal grandmother was represented by solicitor and Counsel.
The hearing concluded in the four days allocated.

Evidence

The documents relied on in respect of the application were as follows:
The Mother
(a)Initiating Application filed 15/01/2013 (dismissed);
(b)Notice of Risk and Child Abuse filed 22/01/2013;
The Father
(c)Response filed 24/01/2013;
(d)Affidavit of the father filed in Court on 01/02/2016;
(e)Affidavit of the father’s partner filed in Court on 01/02/2016;
(f)Affidavit of the paternal grandmother filed 22/01/2016;
The Maternal Grandmother
(g)Amended Response filed 18/11/2014;
(h)Notice of Risk and Child Abuse filed 31/10/2014;
(i)Affidavit of the maternal grandmother filed 23/12/2015;
(j)Affidavit of the maternal grandmother’s partner filed 15/12/2015;
(k)Affidavit of Ms G filed 10/11/2014; and
Reports
(l)Family Report dated 15/12/2014.

Oral Evidence

The Mother

The mother appeared to closely attend throughout the trial. She asked few questions and made no final submissions. When she did ask questions she did so in a contained and articulate manner.
Tendered into evidence by the Independent Children’s Lawyer, without objection, were notes from an occupational therapy and counselling service to which the mother was referred by her GP. She attended in March, May and September 2015.
Thereafter the service concluded that:[15]
… [the mother] does not see the benefit of committing to working on the problems in her life which are within her control. This may be attributed to her low self-esteem and sense of powerlessness to achieve the contact with her daughters which seems to be the primary source of purpose and meaning in her life…
[15] Exhibit 13 (outcomes)
The mother appears to have been candid with the Counsellor about drug abuse and poor rehabilitation attendance. I note she related childhood abuse as follows:[16]
… rejected by [mother] & called “a mistake”, locked up & abused by [step-father] - in Yr 2 [mother] placed her on meds for ADHD that rendered her unable to function at school - Dad took her off meds - tantrums.
[16] Exhibit 13 (issues/concerns identified)
The maternal grandmother did not provide any information in her affidavit about the relationship between the mother and herself historically or currently. She did provide information to the Family Consultant.[17] The focus was on the “significantly challenging behaviours throughout her childhood” and diagnoses of “pre-pubescent Bi-Polar Disorder and later with Oppositional Defiant Disorder”.
[17] Family Report dated15/12/2014, par 69
After her parents separated (when she was aged about five years old), the mother lived with her mother for about 3-4 years. She and her younger brother then moved to live with their father.
The two children returned to live with the maternal grandmother. The mother apparently protested and ran away until she was permitted to return to her father, with whom she remained. She had very little contact with her mother for the balance of her childhood. The relationship between the two women appears uneasy and mutually mistrustful.
The mother cross-examined the maternal grandmother with questions indicating careful thought about the future of the subject children.
The maternal grandmother agreed with the first proposition that she and the mother “did not have the best relationship” when the mother was a child.
When asked “how do you expect me to believe that you can look after my two children when you didn’t look after me”, the maternal grandmother replied, “I am not the same age as when I looked after you”. This appeared to be a concession of mothering difficulties experienced by the maternal grandmother.
When the maternal grandmother offered the observation that, “Your girls are going to need lots of help, and a safe stable loving environment”, the mother’s response was swift, “The one I didn’t have?”
I place some significance on the response of the maternal grandmother to this question:
Q: I was never a well-behaved child. I understand [B] is like me. How are you going to handle [B]?
A:That’s your opinion as a nine year old.
I considered that this dismissive response by the maternal grandmother was designed to move the questioning away from the topic. The maternal grandmother had just stated that the mother had “run away all the time” and that it was on the advice of the Department that she had let the mother go to her father.
Whatever the problems were in the home of the maternal grandmother they were not minor matters. There was no material in the affidavit of the maternal grandmother about any of the matters involving the mother as a child or the relationship between the mother and the maternal grandmother’s second husband.
It is a matter for regret that the mother did not participate in the Family Report interviews, that she was not legally represented, and did not file an affidavit. However she did attend this trial.
The mother had nothing to gain in these proceedings. I am satisfied she holds a genuine concern about the welfare of the children in the care of the maternal grandmother based on her own childhood experience.

The Father

The father represented himself. He was well prepared and asked relevant questions. His answers in cross-examination revealed a loving commitment to the children, consistent with a history of him being their primary carer.
The father formed a relationship with his wife soon after separation from the mother. They had been at High School together.
When the father formed a relationship with the mother they were 18 years old, immature and unskilled. The father had been using marijuana for about three years, probably in the company of his father.
The evidence revealed that the paternal grandfather lost his job when the father was about 15 years of age, causing the paternal grandmother to enter the

full-time work force. The indications are that the paternal grandfather was suffering psychologically; he has not been in the habit of leaving the family home for many years.
The father continued to do use marijuana for another two or three years.
Accordingly the father was spending what money he had on marijuana and was not ready to have children as young as he did. Neither was the mother who had a much more tumultuous childhood history.
When they began living together, these young parents lived in the home of the paternal grandparents. The mother suffered from post-natal depression and was prescribed anti-depressants after the birth of their first child.
They then lived in a property owned by the maternal grandmother.
The mother was clearly quite mentally ill and could not cope with the relationship or motherhood. She became violent and there is no evidence before me about the cause or extent of her problems.
The father revealed no animosity towards the mother, although she has undoubtedly attacked him at times. I am satisfied that he has a genuine commitment to the children being able to spend time with the mother whilst ever it is safe. He has arranged for the children to spend time with her on a couple of occasions in the last 18 months. In his view the mother can cope with one child at a time for short periods and that arrangement was made accordingly without adverse event.
The Family Consultant was concerned that such unsupervised time took place at all. Without criticism of the father and maternal grandmother, the Family Consultant commented on the impact on children of occasional unsupervised time with the mother who has become less familiar to them with the passing of time.
The father presented as a candid witness. He agreed he had smoked cannabis until the children were born and again in mid-2014 for two or three months after he and Ms Chambers were evicted for failing to pay the rent. At that time the father was spending some money on marijuana and his wife had developed a problem with gambling. This represented a low point in the life of the father in his current marriage in my view.

Drug testing

The father could do nothing other than agree that he had not provided drug screens.
On 16 June 2014 the parents consented to orders for directions to be given to each other, through their lawyers, for urinalysis to be undertaken.
On 29 August 2014, when the maternal grandmother was joined as a party the June 2014 Orders were discharged. The drug screening order, as between the parents only, was made again, in the same terms, by consent. The August 2014 Orders noted that the father had been requested to undergo screens and had not done so. There was no reference to who it was who made the request or to what the mother had been asked to do. Nothing followed procedurally from the failure of both parents to engage with their own consent order.
One year later the solicitors for the maternal grandmother purported to require the father to undergo a drug screen, referring to “Orders 16 June 2013 (sic)”.[18] There was no authority in court Orders at all for the request.
[18] Affidavit of the maternal grandmother filed 23/12/2015, Annexure H
The father recognised that fact and felt resentful, understandably enough. He did not respond. However the father was foolish not to undergo at least one drug screen for his own benefit in this case. The father suffered from the absence of legal representation in several respects and this was one of them.
In any event the maternal grandmother did not refer in her affidavit to any observation of the father being apparently drug affected or reports to her by any third party of concerns about his drug use. There is no obvious prompt for the letter of request other than preparation for these proceedings.
The Family Consultant recommended that the father undertake ongoing drug testing. However in my view, such an exercise post-hearing would be financially punitive, with no benefit for the children, whether or not they were living with him.
The Family Consultant also recommended ongoing drug and alcohol counselling for the father in order to prevent relapse. I consider that this is a significant matter for the father, whilst accepting his evidence, and that of his wife, that marijuana use has ceased since mid-2014.
The risk of relapse, given that the father was a regular user from age 15 to 21, must be high. It would be most harmful for the children if the father lost his current focus and attention to their needs at some period of future stress. Drug and alcohol counselling could only be beneficial to him.
In my view the father should, as a matter of high priority, attend on his general practitioner and obtain a referral to a Drug and Alcohol Counsellor with a view to maintaining abstinence from drug use. There is a great potential benefit by way of family stability to the children from the father shoring up his sobriety in this way. He should engage with drug and alcohol counselling for as long as the counsellor recommends.

Assessment of B

The father’s knowledge of the children was impressive. He had become concerned about B’s behaviour, “not having the ability to stop and do what you told her to do, it’s a million miles from [B’s] mind.”
It was the father who raised concerns about B’s behaviour knowing that there was a history of bi-polar disorder in his own family and certainly some difficulties for the mother growing up. His concerns have apparently been confirmed by the Educare assessment and he followed through in making an application for funding of a programme of therapeutic intervention for her.
The father showed an openness and willingness to support the children’s relationship both with the mother and the maternal grandmother.
A report from her pre-school, where she attended two days per week, states:[19]
… the school have no concerns for [B] … there are no concerns about the presentation of [the father and Ms Chambers] … [B] is always presented in a neat and tidy manner … [B] always brings adequate food each day.
[19] Exhibit 10
The father and Ms Chambers sought advice from, and were guided by, that pre-school about B starting school in 2016.[20] The father made a decision not to send B to school in 2016 based on that advice.
[20] Affidavit of the father filed 01/02/2016, Annexure to the affidavit
The proposition was put to the father that he had failed to facilitate the time between the children and the mother in the contact centre. The father’s evidence was that he made an appointment but prior to attending, was contacted by Relationships Australia and told that the mother had not attended for her intake assessment, so there was no need for him to come. The report from Relationships Australia confirms that neither party attended for their intake assessment and is not inconsistent with the evidence of the father.[21]
[21] Exhibit 5
The father was also challenged on his failure to attend a Parenting after Separation course and a Building Stronger Relationships course. No doubt both he and the children would benefit if he did, but it has to be said that the father has been the full-time carer for the children since at least January 2013 and largely responsible for them since their birth. He now has an almost two-year old son with his wife and is contending with two sets of parallel family law proceedings. It is reasonable to accept that he has not had time to complete improving courses.
My overall impression is that the father is a man who will sometimes strongly express his point of view, become angry at times, but quickly settle down. He apparently does not brood or hold grudges. He is inclined to confront situations in a somewhat aggressive manner at times. His personality is quite incompatible with that of the maternal grandmother, who withdraws emotionally and physically at the first sign of conflict and prefers to avoid confronting difficulties in order to avoid unpleasant encounters.
Shared parental responsibility between the father and the maternal grandmother would be ineffective, no matter where the children were living.
In her evidence the paternal grandmother said she had noticed a deepening maturity in the father over the past 18 months. This observation accords with my view of the father’s response to what time he would seek to have with the children if they lived with the maternal grandmother.

He said that week about shared care would be great for him, who had had the children since birth, but that the disruption to them of that pattern would not be good. He thought it would be better for them to see him every second weekend and maybe one day of the other weekend. He also thought the children should be able to see F, and of course E, and had given some thought to how that could happen.
At times when the maternal grandmother was supervising the mother’s time with the children, she found herself unable to cope with the mother’s behaviour. I accept that the maternal grandmother confided in the father that she could not handle the mother and he offered to attend to assist with the supervision.
My overall impression is that there were times when the father was overwhelmed by his situation but for some time, has managed his life and been attentive to the children’s needs in a more mature and considered way. I am satisfied he is focused on their needs, including their needs to have relationships with those that matter to them and can facilitate that for their benefit.

The Father’s Wife

Ms Chambers is almost 25 years.
She too is hopeful of resuming life together with the father and a re-integration of their four children. There is an Undertaking in place in Ms Chambers’ other proceedings that she and the father can live together, provided he is not present when F is staying with her.
The parties have scrupulously complied with that Undertaking. She is hopeful of F being restored to her care as an outcome of the proceedings in the Federal Circuit Court.
In relation to money, Ms Chambers gave oral evidence that for the past 18 months she and the father had been re-paying the arrears of rent outstanding from the period between mid-2013 and mid-2014 when they were evicted. Each of them has a direct debit on their Centrelink benefit for that purpose.
The allocation of a Department of Housing house in a suitable area has represented a turning point for both of them.
Ms Chambers agreed that she had suffered from depression and anxiety in the past, she currently sees a psychologist, and has ten sessions per year through a mental health plan. She considers that this is helpful to her and the condition is well-managed. Her approach is to be open about those particular mental health problems, “I’ve never ever hid it”.
Her preference is to use the talking cure over medication and “it’s better to talk about problems out in the open; better than taking medication and bottling things up”.
Ms Chambers has shown a significant commitment to the subject children. They were aged about three months and 19 months when she and the father formed a relationship together. I have the impression that both of them treat all four children as their own, whilst acknowledging the mother, in the case of the subject children, and Mr I, in the case of F.
Ms Chambers is bitterly critical of herself for having attempted to recover property left in the home of her now former friend, Ms G:[22]
My husband’s case blew out wide open when I had a falling out with a friend and attended [K Town] Police Station to report some property being withheld from me, that was belonging to my family, the next day, abuse allegations are coming from my ex-partner … and [the maternal grandmother].
[22] Affidavit of the father’s partner filed 01/02/2016, para 7
Ms Chambers described the period of time when her family was living with

Ms G’s family; it was clearly difficult. She described the father as “frustrated living there” and getting “a little bit loud”.
She totally denied in the most emphatic way that she had, as alleged by

Ms G, rubbed a soiled nappy C’s face, “I would never ever do that”.
She readily agreed that there had been all kinds of difficulties arising from different approaches to parenting and the presence of seven children to be cared for.
The evidence of Ms Chambers about smacking conflicted with that of the father. She denied hitting the children to discipline them and said that the father had not smacked the children to her knowledge. The father had conceded that he smacked the children from time to time.
Given that admission against interest, I accept that both the father and

Ms Chambers have at times smacked the children. This of course does not in a legal sense amount to abuse of the children.
Ms Chambers is undertaking a Parenting after Separation course but not the Triple P course and 1, 2, 3 Magic course as recommended in the Educare assessment.
I accept her explanation that in the circumstances she had overlooked that recommendation. I think it is likely given Ms Chambers’ commitment to regularly seeing a counsellor to air her difficulties, that when life has settled down and she is not involved in two sets of family law proceedings, when her family is reunited, she will consider undertaking such courses.
Ms Chambers was able to give a spontaneous description of each of the four children, including the subject children. She did so revealing warmth and affection and a kind of humorous appreciation of the very different personalities of the children.

The Paternal Grandmother

The paternal grandmother is 50 years old. She has three adult sons, of whom the father is the youngest.
She was confronted in the witness box with the proposition that the father had been a marijuana smoker from age 15 in the company of his father. The paternal grandmother was dignified in response. She said that she had not seen her husband or the father smoking marijuana and had been unaware of it. She knew that they spent time in the shed together, but otherwise she was away at work.
There is a difference between wondering and knowing and my impression was that the paternal grandmother knew that there were risks involved in her

15 year old son being guided by his distressed father, but had been obliged to work and pressed on.
The paternal grandmother has at times arranged with F’s maternal grandmother for time between the subject children and F since he went out of his mother’s care.
The paternal grandmother agreed that the father could show anger verbally, but not physically, “he gets upset easily because of these court proceedings”.
She confirmed the evidence of the father that she had told him to take the house in J Town when his name came up on the Housing Commission list. She was content to have the children at any time when the father wanted to stay with his wife and was also content if they stayed at times in J Town. She was also focused on the needs of E to spend time with the father.
The paternal grandmother commented that the father had matured, he had learned how to budget, and to pay his bills.
She too said that she had not seen the father smack the children. It rather suggests that the father’s concession of smacking the children at times refers to very occasional incidents.
In her affidavit, the paternal grandmother referred to the three week period spent in the most recent Christmas holiday period for the children with the maternal grandmother. She said that the children had not been out of the father’s care for more than three days prior to this three week period and that he had missed them “heaps”. Both children had been unable to contact the father for a week whilst away on holidays. Both had asked to come home and the father had reassured them.[23]
[23] Affidavit of the paternal grandmother filed 22/01/2016, par 10
The paternal grandmother said her husband and all three of her sons had been diagnosed with bi-polar disorder. Her view was that with the right treatment it was okay: counselling and/or medication. She nominated the doctor who had diagnosed the father, said that he was medicated for a short while and thereafter went to see a counsellor at the local hospital. The counsellor cancelled further medication and after a period of fortnightly counselling, the father did not go back on medication or see any more counsellors. The father was in Year 9 at this time. I am not confident how much the father knew about the diagnosis or the reason for his counselling at that time.

The Maternal Grandmother

The maternal grandmother had contact with each of the subject children since they were born, although not consistently. She remained at a distance, hoping that the mother would make a go of family life, despite misgivings.
Those misgivings, whatever they were, were not sufficient to cause the maternal grandmother to make an application to a court to report her concerns to the Department, to approach police, or to take any other step until she was joined to these proceedings in 2014.
Initially she joined in order to have independent time with the children, not simply as a supervisor for the mother. Her evidence is that she also wanted to secure her time with the children by order before making the application she has; that is, for the children to live with her and to spend minimal time with each of their parents.
The picture painted by the maternal grandmother was one of financial stability and loving interest in the subject children. However, I also had the impression that the maternal grandmother holds the belief that she will be able to ‘fix’ the children; that is, undo all that has taken place over the early years of their lives.
The maternal grandmother is doubtful about the diagnosis of autism for B.
I consider it likely that the reason for doubt is that she believes that B has simply been exposed to the wrong people and brought up the wrong way, which can be rectified by consistent routine and access to appropriate professional intervention.
She was asked whether B’s behaviour had recently been improving, her answer was “is it autism or is it social behaviours from a learned environment?” The tone of the maternal grandmother was arch and suggested that she very much supported the latter explanation.
The father, as a first question, raised with the maternal grandmother that she had made no complaint of injury or distress for the children in the period between July and September 2014, when they were all living in the household of Ms G.
In relation to what Ms G reported to her about the treatment of the children, the maternal grandmother said she “didn’t know if it was true to not, I wasn’t there”. Ms G went on in her evidence, subsequent to the maternal grandmother’s evidence, to deny that she had said that B had been dropped on the tiles by the father, although that is what the maternal grandmother reported being told.
The father pressed the maternal grandmother as to why, if concerned, having heard what Ms G had to say, she had not spoken to her more than once. The answer was that the maternal grandmother had spoken to her solicitor, which again confirms my view that the maternal grandmother was looking for supportive evidence and was not focussed on the real events in the children’s lives and whether they were safe.
The father also proposed “if you honestly thought they were being abused, you would have called the police”. The maternal grandmother answered, “I didn’t want to cause trouble by calling the police”. The question of who the maternal grandmother did not want to cause trouble for was unfortunately not asked.
The father asked the maternal grandmother about the photographs annexed to her affidavit, which in one case was a very close up view of B’s genitals fully exposed. Other photographs were of the children naked with small bruises on various parts of their bodies. The maternal grandmother conceded that on occasion she had said to the children can I take a photograph and they had not wanted it done, “but when it’s so important you have to”. Reflecting on this response, I infer that the importance was of gathering evidence for this case since there was no report in relation to intentional injury.
The evidence of the Family Consultant was that photographs should never be taken of a child’s genitals, nor should photographs be taken of children naked. This is of some significance in this matter, where the feelings of the children about the maternal grandmother’s conduct in taking photographs were set aside in favour of evidence gathering. It was quite insensitive.
The maternal grandmother has shown a considerable disrespect for the father’s role as the children’s parent; particularly where he has had them in his full-time care most of their lives. She described their behaviour as “pretty good on the whole”, which rather suggests that they have done well in the father’s care. Her attitude makes it more likely that the father would reduce in significance for the children if they lived with her.
Combined with that is her attitude to conflict. She said that the father gets “really aggressive. I feel intimidated. That’s not my personality. I’m not like that”. Her approach is to avoid conversations if it is likely to lead to disagreement.
I consider that she greatly underestimated the impact on the children of her proposal of moving from the full-time care of the father and the company of their younger brother and at times their older step-brother, to her full-time care with minimal contact with the father.
Her initial evidence was that she was proposed to take a month off work to settle them in. She also intended to enrol B at school and C at pre-school close by her house. When pressed, the maternal grandmother said it likely would have a huge impact to be moving away from the father for the first time and that she would be prepared to take up to 12 months off work.
I think the maternal grandmother is underestimating the emotional impact of what she is proposing. She attempted to speak to L Town pre-school about B going to school and was told that the father had directed the pre-school not to discuss the matter with her. The maternal grandmother was affronted by that, but she did not then talk to the father and ask him about his plans.

Attitude to the father

The maternal grandmother seemed surprised at the suggestion that she should have asked the father before she took the children to the doctor, that telling him afterwards was not sufficient. She treated him dismissively on one occasion, handing him antibiotics. He asked about when the drugs should be taken, before or after food, and was told by the maternal grandmother that if was not on the bottle, he should look it up on the internet.
I asked the maternal grandmother if she knew that the father (and the mother) had parental responsibility and that she did not. She said, “Yes. In the back of my mind I knew that. That the parents had parental responsibility”.
In another occasion, the maternal grandmother took B to the emergency department of the hospital. She did not tell the father that she was doing so. She had sufficient time to organise for her partner, who lives locally, to come and look after C, whilst she took B to the hospital, but not sufficient time to ring the father and let him know what she was doing and where the child would be. She used the mother’s Medicare card to arrange medical treatment, including an ultrasound for B and in relation to medical reports, asked her doctors to post copies of anything relevant to the father’s GP.
In my view, the maternal grandmother has resisted acknowledging the authority of the father.

Early life of Mother

The maternal grandmother separated from the maternal grandfather when the mother was aged about five years. She re-partnered in about 1997-1999 when the mother was aged about 6-8 years old. In 2003 she married that partner who died in 2006.
The maternal grandmother stated in her affidavit that she “held concerns about the children being exposed to [identified behaviour of the parents], but … was not aware of the options available to [her], such as reporting [her] concerns to [the Department]”.[24]
[24] Affidavit of the maternal grandmother filed 23/12/2015, par 37
I do not accept that evidence. The maternal grandmother had direct experience of calling on the assistance of the Department in her own family when the mother was running away as a child. That information came in a spontaneous explanation of why the mother’s brother lived with the maternal grandmother but the mother did not, “it was on the advice of [the Department] to let you go to your father’s”.
The father put an apt question to the maternal grandmother: that if she had honestly thought the children were being abused, she would have called the police:
Answer:         I didn’t want to cause problems by ringing the police.
Question:      Despite your belief they were actively being abused.
Answer:         Yes.
If these answers were honest the maternal grandmother was either indifferent or un-protective towards the children.
On balance I consider that the maternal grandmother did not think the children were being abused. She disapproved of the chaotic lifestyle she observed when the parents were together, but probably considered the children were safe enough in the care of the father in particular. In oral evidence she said she had remained hopeful that they would “come together as a family”. It is not consistent with a fear of actual abuse.
However I do consider that the maternal grandmother was reluctant to become involved to avoid conflict for her own sake. She allowed the mother and the father to live in her investment property. They moved in when B was about five weeks old. Soon after the mother moved in to a Mental Health Unit, expressing fears of hurting herself and the child.
The relationship between the parties deteriorated. Police were called. In April 2011, the father took the child to the paternal grandmother’s home. The maternal grandmother did not see the child for three months and formally evicted the parties for failing to pay the rent.
This course suggests disapproval, not concern for the safety of the child.
There has been an assessment of B with multiple diagnoses including one of autism. The maternal grandmother is doubtful about the diagnosis.
The mother told the maternal grandmother that B was not starting school in 2016. Without attempting to speak to the father to confirm and enquire, the maternal grandmother had her solicitors send a letter.

The Maternal Grandmother’s Partner

The maternal grandmother’s partner is 59 years old. He has enjoyed a relationship with the maternal grandmother for about three-and-a-half years. He has two adult children.
He was not required for cross-examination and his evidence is therefore unchallenged.
I have no doubt that he is an affectionate and interesting presence in the lives of the children and enjoys their company.

Ms G

Ms G was unwilling to disclose her address.
In relation to her affidavit in these proceedings and in the Federal Circuit Court proceedings, she said that she had told her story to the solicitor, had not read her affidavit before she signed it and had not read either affidavit since. She did not appear interested to undertake that exercise even now.
Ms G conceded that there had been an altercation between herself and Ms Chambers over a laptop which the latter alleged had been left in the home. It was only after the father, his wife and the four children had left the home that she began to raise complaints and concerns.
She said she made a report to the Department but in fact she had spoken to someone in the K Town Office who told her that now the children were not in her household there was nothing particular to do and that she should ring police if she was worried. Ms G did not ring the police. What she did was contact the mother and Mr I, F’s father.
When the maternal grandmother made contact with her, to get information, she is reported as having said, among other things, that the father “dropped [B] on the tiles”.
In the witness box, Ms G denied having said that and was emphatic that she had never seen such a thing happen.
She was generally an unimpressive witness. Her stated motivation was to protect the children, but I do not accept that that was it.
She resiled from some of what she had reported to the maternal grandmother. For instance, she was unable to remember how many times she had seen

Ms Chambers hit B. She denied that she had said that Ms Chambers had hit the children with objects and had never seen that. She seemed aggrieved to be cross-examined and explained that she thought the limit of her involvement would be to tell her story to the lawyers for the respective parties.

The father pressed Ms G, “If I was such an abusive person, why didn’t you call the police?” She answered, “We were trying to get you on the path …” (this was undoubtedly the path to being better parents).
Ms G conceded that she smacked her own children and had never called the police when the two families were living together about misconduct by anyone.
Extraordinarily she then went on to say she did not have a very good memory and suffered from short term memory loss and that that was “in medical records”. It may have been. It certainly was not in her affidavit.
Likewise, when shown the contrast between the two different versions contained in the affidavit in these proceedings and in the Federal Circuit Court proceedings, Ms G said that that was not a description of the same set of events, although said to have happened in August 2014. It was two separate incidences that took place in two different houses.
It emerged that Ms G had moved house during the time that the father and his family were staying there and they had moved with them. It is entirely inconsistent with Ms G being concerned that the children were being abused in her household. That there were two similar incidents in the same month in 2014 is also unlikely, neither affidavit refers to two incidences; only one.
I consider that Ms G was spontaneously fabricating when she gave that evidence.
Finally, Ms G said that she had felt surprised when Ms Chambers, her (former) best friend, and the family left without notice and that she now only remembers bits and pieces of what happened.
I do not accept that Ms G’s motivation was to protect the children or to assist them in any way. It is more likely that her actions were punitive and reactive towards her former friend and the father, of whom she had never approved.

The Family Consultant

Counsel for the Independent Children’s Lawyer gave quite a lengthy summary of events since the Family Consultant had seen the parties and the children in December 2014.
The Family Consultant said, and it can hardly be challenged, that when a child witnesses family violence, they come to live in a constant state of high anxiety and fear; that there was significant psychological impact of a primary carer being abusive.
In this case, the relationship between the children and the mother effectively broke down in August 2014. They were no longer able to spend time with the mother, the maternal grandmother could not cope with supervising the mother and it was understandable. The hostility in that relationship and the mother’s own behaviour made supervision an unlikely long-term process.
There is evidence the mother was verbally abusive, if not physically abusive, to both the children, especially B, when she was a young baby.
The constant in the children’s lives has been the father.
There was insufficient time on the day of interviews for formal observations of the children to be undertaken. The children were observed by the Family Consultant as follows:[25]
[B] is the four year old subject child. She presented as an energetic playful child who appeared to present developmentally within normal parameters. [C] is the two year old eight month old subject child. She presented as a playful affectionate child who appeared to present developmentally within normal parameters, except for being delayed in toilet training.
[25] Family Report dated15/12/2014, par 94
The Family Consultant also observed the children to have “a familiar relationship” with both the father and his wife and a “physically affectionate relationship” with the maternal grandmother and her partner.
The Family Consultant placed significance on the difference in those relationships. I take into account the fact that in December 2014 the relationship between the children and maternal grandmother had developed over the past 3-4 months as a result of regular, alternate weekend time, in the absence of the mother. In that sense, it was a new relationship where they had the undivided attention of the maternal grandmother. The father and his wife have been their carers for as long as they can no doubt remember.
The Family Consultant recommendations appeared to turn on the impact of family violence, “the father’s alleged history of perpetrating family violence and the allegation that the family violence continues in his relationship with the step-mother, are concerning”.[26]
[26] Family Report dated15/12/2014, par 101
I am not entirely sure what history of perpetration of family violence on the mother and the step-mother the Family Consultant is referring to. There is a concession that there have been verbal arguments but the evidence supports a finding that the father took a protective role with the children when he was involved in the relationship with the mother and has been a loving and affectionate father to both of them over the past three years when they have been in his full-time care.
The Family Consultant agreed that the decision about where the children lived turned on the Court’s assessment of family violence. In my view, the children have been exposed to family violence but the perpetrator has not been the father. Further, that family violence took place in the children’s infancy in the context of the relationship between their parents. The mother was verbally abusive, particularly of B.
To the extent that the allegations made by Ms G were relied on by the Family Consultant, I disregard that material.
The Family Consultant was strongly in favour of there being an order restraining from the children from being brought into contact with the mother. Her comment was that limited supervised time would be just enough of a crutch for the mother to keep her from addressing her significant problems.
That may well be true, but it is the best interests of the children that I must consider and not the best interests of the mother. To adopt the course of cutting off all contact for the children from the mother, in order to prompt the mother to address her problems, is unjustifiable.
The children have seen the mother from time to time in the care both of the maternal grandmother and the father.
The mother has rung the father from time to time and he organises for her to see the children. She attended the father’s home for B’s last birthday.
The children need protecting from the mother; she can be unpredictable and has a history of the use of Ice which creates an unacceptable risk for the children in her unsupervised care. However, I do not see why the children should not spend occasional time in the company of the mother, provided that the father or maternal grandmother is present when that happens.
The Family Consultant identified that the children would benefit from a stable, non-violent, reparative environment. No doubt that is true for all children; not just the subject children. But I am not satisfied that being moved into the exclusive care of the maternal grandmother would represent a stable environment.
The Family Consultant did not resile from her view that the children should move to live with the maternal grandmother and that she should have sole parental responsibility. The maternal grandmother is more mature and financially stable than the father. She would provide a safe clean home and attend to education.
It would be emotionally distressing for the children, who have already suffered the loss of the mother, and would then suffer the loss of the father, effectively. B in particular is upset by spending too much time away from the father. C appreciates some undivided attention which the maternal grandmother can give.
The Family Consultant stated, “They will miss the father”. In these circumstances I consider that this is too understated.

The Law

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

Parental Responsibility

The parents presently have equal shared parental responsibility.
The father has been responsible for decision-making about the children, as well as their day-to-day care. Over at least the past 12 months the maternal grandmother has made decisions about the children in relation to their health without reference to the father
There is sufficient evidence before me that the mother presently lacks capacity to make decisions in the long-term interests of the children, although she is undoubtedly concerned about them and that the best decisions be made.
The father has effectively had sole parental responsibility. He has taken the decision to have B referred for assessment and that lengthy and complex process has very recently concluded with a confirmation of autism and other conditions which need addressing.
The father has also taken a decision based on the advice given to him by B’s pre-school that she should wait to start school until 2016. I note that the insistence of the maternal grandmother that B should start in 2016 had not had the benefit of the thoughtful advice provided by the pre-school.
There is not a good relationship between the father and the maternal grandmother. The latter avoids speaking to the father and the father confronts the maternal grandmother in an attempt to discuss issues with her. They have incompatible personalities and a good working relationship is unlikely to develop.
The father does have a reasonably good relationship with the mother, but she is not always available, depending on her mental health and drug use to engage with the issues.
In those circumstances it seems more appropriate for the father to continue to have sole parental responsibility.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

The children do not presently have a meaningful relationship with the mother. They see her often enough to keep her in mind.
Their most important relationships are with the father, Ms Chambers, and the maternal grandmother, who has in the last 18 months taken a parental role with them.
It would be appropriate for the maternal grandmother to take a more grandmotherly role with the children, encouraging them, listing to them, reading to them, providing them with a safe and happy environment and enjoyable excursions.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

Submissions were made by the Independent Children’s Lawyer that there was an unacceptable risk of neglect in the father’s household and of being exposed to family violence.
I cannot accept that submission. The basis appears to be that the father used illicit substances from age 15 until age 21 or 22 and again in July 2014. The illicit substance being marijuana. I accept that there is a theoretical risk of relapse into that drug use.
In relation to family violence, the submission was that:
a)The family violence had been conflict and yelling between the father and his wife;
b)Both parties had smacked the children;
c)The father had at times said to his wife “I’ll punch you in the head” or had pretended to head butt her, whilst conceding that both statements were made in a joking way, and understood by the step-mother in that way;
d)The incident on 31 March 2015, where the children were taken out in the car at night. Although I note there was no evidence that they had been awake and heard the argument between the father and his wife;
e)The maternal grandmother feels intimidated by the father when they come in contact; and
f)The father had failed to have drug screens.
I do not accept that the matters raised, or the evidence overall, amounts to conduct which would subject or expose the children to an unacceptable risk of abuse, neglect or family violence.
There have been times in their history when the children did need to be protected from physical or psychological harm, particularly in the years when the parents lived together and in the period between separation in July 2012 and parenting orders being made in January 2013. Shared care between the parents however well-intentioned was no doubt abusive, given the mother’s drug-use and angry reactions.
However, now, the situation has stabilised.
The father has shown considerable maturity in the way he has addressed the competing needs of the subject children, his two-year-old son, his wife, and her six-year-old son as they work through the conflict of two sets of legal proceedings. The father has most probably maintained abstinence from marijuana since July 2014, but may be optimistic about being able to sustain that abstinence without support.
I consider that the best interests of the children call for them to continue to live with the father, who is likely to maintain their important relationship with the maternal grandmother, in a cheerful and supportive way.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The children are girls, aged 5 and not quite 4, and not old enough to understand the implications of the applications.
B has been diagnosed with autism and anxiety. Her behaviour can be disruptive. At times she cannot sleep at night.
C is progressing well and does not share her sister’s difficulties.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

The children have a range of relationships; with the father, his wife, the maternal grandmother and her partner, the paternal grandparents and the step-mother’s parents. They are well loved in several different households.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

The father has made decisions both to take on the care of the children and to work hard to meet B’s particular needs. He has also supported the relationship with the mother at times when it is safe to do so. He has supported and not undermined their relationship with the maternal grandmother.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The father and the step-mother have Centrelink incomes from which they provide for the children. The father raised $800 to pay for B’s Assessment by Educare.
There is no evidence to suggest that the mother makes a financial contribution.
There is no evidence to suggest that the maternal grandmother makes a financial contribution. She is not obliged to do so. She provides for the children each weekend. The maternal grandmother is willing to take on the financial obligation to raise the children

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

The children are used to spending time with the maternal grandmother; they have done so every weekend for the past year. I accept the evidence of the Family Consultant that that is too much on a final basis and that they will do better with alternate weekends and some holiday periods.
There is likely to be a positive effect for the children in being reunited with the step-mother and younger brother, particularly in a house where there will be some real stability of accommodation.
C will no doubt start pre-school in the new local area and there will be need to be transition for B from L Town pre-school to an appropriate pre-school in her local area.
In the event that the children were living with the maternal grandmother likewise there would have been a change for B from her current pre-school, either to school or pre-school in the maternal grandmother’s local area.
It will be important for the children, especially B, that once she has commenced at school, she continues, if it all possible, at that school.

The practical difficulty and expense of a child spending time with and communicating with a parent

The children will now be a little further away so that there is a longer period of travel for them between the father’s home and the maternal grandmother’s home. On an alternate weekend basis, finishing late on Sunday afternoon, it will not be too onerous to travel at that level of regularity.
It is likely that the children will see the mother in the care and company of the maternal grandmother and her partner and it is likely that the mother will get in touch with the father from time to time and arrange to be present for special occasions for the children for short visits.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The father is 25 years old and has matured in the last 18 months. He has shown a capacity to care for the children since their birth. He has had very little money and not much opportunity to work due to the obligations of full-time caring for the children. He is emotionally sensitive to the children and committed to B having therapeutic intervention.
The father has the vulnerability of any person who has been dependent on a drug. He has been a user of marijuana and would benefit from specific drug and alcohol counselling with a view to preventing relapse.
The step-mother has a good capacity as a parent. She has had not just four children close together in age to care for, but the competing pressures of her oldest child’s relationship with his father and the father’s relationship with the subject children to contend with.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

The children are aged five and almost four.
B has been diagnosed as on the Autism Spectrum and with other severe behavioural disorders which need attention.
C is a well-developed child who is sometimes on the receiving end of B’s behaviour.
Both children have a loving and affectionate relationship with their little brother and older step brother.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

Each of the parents has demonstrated commitment and responsibility as parents.
In the case of the mother, she participated in the proceedings knowing that there would be no orders favourable to her; her application having been dismissed. She is concerned about the children in the care of the maternal grandmother and in my view, came to Court to attempt to expose the basis for that fear in these proceedings.

The maternal grandmother decided in 2014 that she would make an application to take over the care of the children. Prior to that, she did not involve herself in their lives at times when the mother was frail and vulnerable, and both the parents were young and struggling emotionally and financially. The maternal grandmother conceded that she could have acted sooner and did not.
I have found that her explanation that she was unaware of the ability to report concerns to the Department or police could not be accepted and that her desire to avoid trouble, meaning confronting conflict, had a role to play in her decision-making.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

There has been family violence in the relationship between the father and the mother.
There has been conflict between the father and his wife and disagreements, but I accept that the parties have worked on their relationship, particularly during a period of separation between January and March 2015 and are committed to working together for the benefit of the four children.

Any other fact or circumstance that the court thinks is relevant

The children’s younger brother, E

I take into account the fact that E has not been the subject of any complaint or report to authorities. He has done well in the care of his mother and father and enjoys a happy relationship with his older siblings. It is a matter of some significance in assessing the parenting capacity of the father, and to a lesser extent, his wife.

Drug and Alcohol Counselling

I endorse the views of the Family Consultant about the benefits of Drug and Alcohol Counselling. The father should give priority to help for himself so he can provide a stable and consistent home for the children.

Time with the mother

There was a previous order for the mother to see the children in a Contact Centre. The mother did not undertake the intake process and the centre was not used. In those circumstances there is no point in making a similar order.
Without evidence of the mother’s current circumstances I am unable to make an appropriate order for time.
It is most likely that the mother will make contact with both the father and the maternal grandmother from time to time and ask to see the children. I am satisfied that each of them will be appropriately protective of the children around the mother whilst wanting to keep the relationship alive.
However I accept the evidence of the Family Consultant that irregular time is unhelpful for such young children and possibly nerve wracking for them, given the mother’s past history of being at least verbally abusive towards them. The father and the maternal grandmother will each need the authority of a Court order restraining unsupervised time between the children and the mother. Either of them or a trusted nominee should be present for comfort and safety.

Conclusion

The children will continue to live with the father and may now move full-time into the household at J Town with Ms Chambers and their younger brother.
They will benefit from ongoing, regular contact with the maternal grandmother, especially when their relationship with her reverts to grandchild and grandparent. The competitive attitude as to who will be the parent that has arisen between the father and maternal grandmother has not been helpful to them.
For all those reasons I make Orders accordingly.

I certify that the preceding three hundred and three (303) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 February 2016.

Associate

Date: 18 February 2016

[2016] FamCA 86

19 February 2016

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Procedural Fairness

Remedies