Moyle & Houston
[2025] FedCFamC2F 426
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moyle & Houston [2025] FedCFamC2F 426
File number(s): BRC 10532 of 2023 Judgment of: JUDGE WILLIS AM Date of judgment: 3 April 2025 Catchwords: FAMILY LAW – PARENTING – where the mother who had a psychiatric disorder passed away shortly after giving birth to twins – children initially placed with the Department who organise for children to live temporarily with the maternal grandparents and then supported the twins being placed with father – maternal grandparents seek orders for twins to live with them – grandparents subsequently agree to Consent Orders for twins to live with the father who is of aboriginal descent and for father to relocate in to the future with the children – when the father relocates the grandparents refuse to return children to his care and commence a second round of family law litigation – grandparents re-agitate issues of father’s mental health and allegations he lived in a household where he was subjected to family violence – where maternal grandparents now blame the father for the suicide death of the mother – family violence has occurred in both households – children of mixed racial heritage – maternal grandparents dispute Aboriginal father’s cultural knowledge – considerations of the children’s right to enjoy their culture with others within that culture Legislation: Family Law Act 1975 (Cth) Part VII, ss 60CC(2), 60CC(2A), 60CC(3), 60CE, 60CG, 61CA, 61F, 64B, 64C, 65C
Family Law Amendments Act 2023 (Cth)
Cases cited: D and F [2001] FamCA 382
Kay and Jasper and Ors [2007] FamCA 1646
Rice v Miller (1993) FLC 80,240
Division: Division 2 Family Law Number of paragraphs: 342 Date of hearing: 7, 8, 9 August, 9, 10, 11 September 2024 Place: Brisbane Counsel for the Applicants: Mr Selfridge Solicitor for the Applicants: Lake Dawson Lawyers Counsel for the Respondent: Ms Shepherd Solicitor for the Respondent: Tempest Legal Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Parker Family Law ORDERS
BRC 10532 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MOYLE
First Applicant
MR MOYLE
Second Applicant
AND: MR HOUSTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE WILLIS AM
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
Parental Responsibility
2.The respondent father shall have sole parental responsibility and decision-making authority for X born in 2021 and Y born in 2021 (“the children”) in relation to all major long-term issues including but not limited to their health (current and future), religious and cultural upbringing, education (both current and future), and each child’s name.
Live with
3.The children are to live with the father.
Spend time with/communicate
4.The children will spend time and communicate with the applicant maternal grandparents at all times as agreed between the parties but failing agreement only at the following times:
(a)On the last weekend (the weekend will start at 10:00am Saturday and conclude at 3:00pm on Sunday) of each month, commencing on Saturday 26 April 2025.
Special Days
5.The children will spend time with the maternal grandparents on the Mother’s Day weekend from 10:00am Saturday to 3:00pm Sunday and in relation to the Father’s Day weekend the children will remain living with their father for the whole weekend.
Christmas Days
6.In odd numbered years the children will spend from 10.00am on Christmas Eve to 10.00am on Boxing Day with the father.
7.In even numbered years the children will spend from 10:00am Christmas Eve until 10:00am Boxing Day with the maternal grandparents.
School holiday time
8.The children will spend block time with the maternal grandparents during the school holiday periods as set out below:
(a)Commencing in 2025 for one block of 7 nights (one week) to occur once each year. The timing of the one week holiday will be as agreed between the parties in writing and failing agreement as otherwise nominated by the father;
(b)Commencing in 2026 and continuing thereafter, for two (2) separate blocks of seven (7) nights (not to be combined) each year. The timing of each separate week each year will be as agreed between the parties in writing and failing agreement, as otherwise nominated by the father;
(c)When the children are spending block time with the maternal grandparents pursuant to Orders 8(a) and 8(b) herein, the maternal grandparents are to facilitate a video call from the children to the father twice each week on Tuesdays and Fridays from 6.00pm to 6.30pm.
9.The children will live with the father at all other than when they are spending time with the maternal grandparents pursuant to these Orders.
Medical treatment for the children
10.The maternal grandparents are not to present the children to any medical facility, general practitioner, or allied health professional, without first obtaining the father’s written permissions, except in the case of a genuine medical emergency whilst the children are in their care, at which point the maternal grandparents are to comply with the provisions of Orders 11(a) and (b) below.
11.Should either child suffer any injury or require emergency treatment while they are spending time with the maternal grandparents, the maternal grandparents are to:
(a)Immediately (either the maternal grandmother or grandfather) notify the father of the emergency, and where the child or children have been taken, together with the identity of the person treating the child/children;
(b)Immediately ensure that any treating professional is aware of the Court’s Orders that only the father may make long term medical decisions for the children.
Telephone/video calls
12.Each Wednesday the father will facilitate the children spending time with the maternal grandparents by telephone/ video call between 5:30pm and 6:00pm with the maternal grandparents to initiate the call/s to a number nominated by the father, noting that from time to time the father is at liberty to nominate another day of the week if this scheduled time conflicts with the children’s schooling routines or extra-curricular activities.
13.The father will facilitate the children spending time with the maternal grandparents by telephone/ video call on each of the children’s birthdays, the maternal grandparents' birthdays and on Easter Sunday between 5.30pm and 6:00pm with the maternal grandparents to initiate the call/s to the number nominated by the father.
Cultural events
14.That upon the father giving one (1) weeks’ notice to the maternal grandparents (except in case of an emergency where such notice is not possible at which time the notice will be as soon as possible) that the children will be attending an Indigenous cultural event or cultural celebration (as determined solely by the father) at a time when the children would otherwise be with the maternal grandparents as provided for in these Orders, then the children’s scheduled time with the maternal grandparents will be postponed and alternative time will occur on a date as agreed between the parties but which must occur within four (4) weeks of the postponement.
Changeover
15.All changeovers for the children (to give effect to these Orders) will occur at Venue OO located PP Street, Town QQ unless otherwise agreed in writing by the parties, and if not agreed the handover location will be as nominated by the father. In the event that the father relocates, the changeovers will occur at a location as agreed between the parties and failing agreement, as nominated by the father at a location approximately halfway between the father’s and maternal grandparent’s homes.
Restraints
16.The maternal grandparents are restrained from discussing with the children (in their presence or hearing) their views that the father contributed to the mother's death.
17.The maternal grandparents are restrained from leaving the children unsupervised with their adult son Mr JJ.
18.The father is restrained from leaving the children with the Paternal Grandfather, Mr EE.
Other Orders
19.The Father is at liberty to provide a copy of his psychiatric assessment by Dr KK to his treating psychologist, other mental health practitioners or general practitioners.
20.The father and the maternal grandparents are at liberty to provide a copy of these Orders to the children’s school/daycare and all of their medical health providers, the Police, and any other statutory body.
21.The ICL is to forthwith provide a copy of these Orders and this judgment to the Department of Families, Seniors, Disability Services and Child Safety.
22.The parties are to keep each other informed as to their residential addresses, telephone number, and email contact details, and inform each other of any change to those details within 24 hours of such change.
23.The Maternal Grandparents are permitted to attend the schooling/daycare of the children by attending assemblies and other celebrations at the children's school/day-care, or extra-curricular activities that parents would normally be invited to attend, any Mother's Day and Grandparent’s Day activities, however, their attendance is subject always to the discretion of the school authorities or organising body NOTING THAT the father has sole parental responsibility for children which includes making major decisions about their education and all other long term issues.
24.That this order is sufficient authority to any school or daycare provider for the children to release information to the maternal grandparents that would normally be released to parents (noting the maternal grandparents have no authority to make educational decisions and that the father has sole parental responsibility for all major long term issues which includes making decisions relation to the children’s education) such as school reports or newsletters, and the maternal grandparents are at liberty to request school/daycare photo orders at their own expense.
25.The parties are to continue to use a parenting app for all general ongoing communication, however they are to use telephone or other immediate communication in the event of a genuine emergency involving the children.
AND THE COURT FURTHER ORDERS THAT:
26.The Independent Children’s Lawyer is discharged 28 days from the making of these orders or such further appeal period.
27.All outstanding Applications are otherwise dismissed and removed from the list of cases awaiting finalisation.
NOTATION:
28.Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE WILLIS AM
This is a contested parenting application commenced by the maternal grandparents, Ms Moyle (“maternal grandmother”) and Mr Moyle (“maternal grandfather”) (collectively referred herein as “the grandparents”). The grandparents were aged 51 and 58 respectively at the trial.
The respondent in this matter is Mr Houston (“the father”) who is the father of twin girls Y (“Y”) and X (“X”) (collectively referred herein as “the children” or “the twins”). The father was born in 1998 and was aged 26 at the time of trial.
The children were born in 2021 and were aged three at the time of trial.
Tragically the mother of the children, Ms B born in 2001 (“Ms B”) died in 2021 when the twins were newborn. Ms B was aged 19. Ms B had suffered significant mental health conditions for years. It seems Ms B may have died by suicide when she was seemingly suffering a psychotic episode.
The father is a proud Aboriginal man, with connections to several indigenous cultures. The grandparents are not Indigenous. The children by virtue of their father have a mixed cultural heritage.
The maternal grandparents and respondent father are in dispute as to the children’s living arrangements, parental responsibility and the time that the children will spend with the other party.
All of the parties were legally represented at the trial. Mr Selfridge of Counsel represented the applicant grandparents, Ms Shepherd of Counsel represented the father and Mr Dodd of Counsel appeared for the Independent Children's Lawyer, Mr Parker (“the ICL”).
In this judgment, a statement of fact represents a finding, unless otherwise indicated.
BACKGROUND
Each party has a different view as to the history of this matter and I will discuss each party’s evidence in greater detail throughout this judgment, however this brief overview is to provide a background of the litigation and how it came to be that the children were placed into the grandparents’ care by the time of this second round of litigation. Noting that the parties were engaged in litigation in 2021 which resolved by consent when the parties entered into Final Consent Orders on 22 November 2022 (“the Final Consent Orders”) providing for the children to live with the father, he had sole parental responsibility, and the children spent regular time with the maternal grandparents.
The father and Ms B commenced a very brief relationship which lasted for only four or less months. The relationship commenced in late 2020 when they were both still quite young with the father being aged only 21 and Ms B just 18. The relationship had ended by early 2021.
At the time of separation, the father is unsure whether he and Ms B even knew of the pregnancy.
The father says that at the time their relationship commenced Ms B was living in a homeless shelter in Town C. Soon after they met, Ms B moved in with the father who was living in a home with his parents and younger brother, D who has ASD. Upon the party’s separation in early 2021, Ms B then moved out and stopped living with the father and his family. Ms B moved back into a refuge or some form of supported accommodation arrangement until the birth of the twins.
In mid-2021 a temporary protection order was made naming the father as the respondent and Ms B and the unborn children as the aggrieved. The parties had not lived together or been in a relationship for six months when Ms B made this application. The father denies any domestic violence occurred during the relationship and says he consented to an order without admission as Ms B was pregnant and in terms of her mental health, she was very unwell. Ms B unfortunately had to cease taking her regular medications for her various mental health conditions during the pregnancy. Subsequently, as the birth approached, she seemed to become more unstable and moving into psychosis. As can be seen, difficulties arose with the parties being separated after a very short relationship and Ms B becoming pregnant in that short time.
This protection order provided that the father was to be of good behaviour and not commit domestic violence against Ms B or the unborn children, the father was also prohibited from contacting or approaching within 100m of Ms B (and eventually the children), except as set out in writing between the parties.
Following the implementation of the temporary protection order, it appears the maternal grandmother took on the role as communication facilitator between the father and Ms B. As the pregnancy progressed and the parties were separated, the father said he was told by the maternal grandmother that he could not attend the ultrasound appointment with Ms B. The father became most distressed at being refused permission to attend this important event. Ms B however, then sent the father a text message after her appointment to come back to where she was having the ultrasound so he could see the pictures.[1]
[1] Transcript of proceedings (9 August 2024) p300.
The twins were born in 2021. That was 7 months after the parties separated.
The twins were premature. The twins required the medical assistance of regular oxygen support for a period after their birth. That included the immediate period following their discharge from hospital until the end of 2022.[2]
[2] Exhibit F4.
The father says he was not permitted to attend the birth.[3] The maternal grandmother seems to have been the only person who was present at the birth with Ms B. The father says he was told of the birth by Ms B contacting his sister who then contacted the father.[4] The maternal grandmother sent a text message to the father later on the day the twins were born, announcing their arrival and advising the father that he could have a visit with the babies for a set time, but he was not to bring any other family members to see the newborn twins. At the of trial the father initially denied that he had received a text from the grandmother, but on seeing the text said to be sent by the maternal grandmother, the father accepted the text must have been sent to him. However, the father submits the grandparents only contacted him after they became aware that Ms B had made contact with him (through his sister).[5]
[3] Transcript of proceedings (11 September 2024) p636.
[4] Family Report prepared by Ms E at [112].
[5] Family Report prepared by Ms E at [112].
The father says he went up to the hospital to visit Ms B and the babies for the first time, two days after the twins were born. To do this he made arrangements directly with Ms B (through his sister). The father says he also had other visits to the hospital to see the babies in 2021, unbeknown to the grandmother. The maternal grandmother does not agree that the father went up to the hospital unbeknown to her. The grandmother says that Ms B provided a letter to the father informing him of the conditions that he would be able to see Ms B at the hospital and that I was to liaise with the timing for him at the hospital. When asked if the grandmother was the driving force of these conditions the grandmother agreed, stating that “Because there was a protection order in place, and [Ms B] asked me to liaise”.[6]
[6] Transcript of proceedings (7 August 2024) p50.
Ms B was discharged from the hospital with the newborn twins in 2021, being seven days after their birth.
Ms B originally went to stay at F Centre in Region H which is part of a support service for young mothers. Ms B only stayed here for a night or so before going to the grandparent’s property in Suburb G also for a short stay. The maternal grandmother said Ms B was to stay with them for two nights for the purposes of her attending a medical appointment two days later.[7]
[7] Transcript of proceedings (7 August 2024) p50.
… 2021 - Ms B leaves her parents’ home, with assistance.
By this time Ms B began to show signs that she was very unwell psychiatrically and the maternal grandmother subsequently called Ms B’s mental health social worker during the day and reported that Ms B was struggling with her emotions following a lack of sleep for days.[8] By 8.30pm that evening Ms B left the home of the maternal grandparents, with the twins. The circumstances of that departure are in contention. At trial under cross-examination in 2024, and to police in 2021, the maternal grandmother says that Ms B left the residence to go to a friend’s place who lived in Suburb J and suggests that that departure occurs in an orderly fashion.[9]
[8] Exhibit F5.
[9] Exhibit F6.
However, the grandparents reported that event differently to the family report writer, Ms E in February 2024, saying that “whenever [Ms B] got manic, she’d accuse us of things”. According to the family report, on that date Ms B got upset about the way the grandmother took the baby out of the car and this led to a situation that had escalated such that Ms B suddenly left their residence on that night and went to stay with friends.[10] Ms B was to say later that the maternal grandparents tried to stop her leaving and they tried to take the twin babies from her.
[10] Family Report prepared by Ms E at [59].
When Ms B left her parent’s home with the newborn babies (who each still required regular oxygen) it seems Ms B took them to the home of her former partner, Ms L (“Ms L”) (Ms B was bisexual). The maternal grandparents did not know where Ms B and the babies went once Ms B left their home with the twins. It is clear on the evidence that there was tension and disagreements between the maternal grandparents who were understandably worried about the wellbeing of the twins whilst in Ms B’s care once she left their home, given Ms B’s condition as reported by the grandparents to Ms B’s mental health care worker earlier that day.
By midnight, the day Ms B and the babies left the grandparents amidst conflict, the father was contacted by Ms B who very much wanted the father to come around straight away to see the babies and help her. Ms B told the father that the grandparents had tried to take the twins away from her and she asked the father to attend the place she was staying with the twins. Ms B was upset, anxious and worried.
In response to Ms B’s request for the father to visit her and the babies, the father who was conscious that there was temporary protection order in place between himself and Ms B, asked Ms B to provide written clarification that she was inviting him to come and see her and that he was permitted to come to that home. Ms B sent the father a text at 1.04am giving him permission to come around to where she was staying at Ms L’s place and gave him the specific address.[11] The father also decided to take his own mother, Ms K (“the paternal grandmother”) along with him for support. The father said sometimes when I do things, it backfires, so same reason, second time with the hospital, I knew something could twist instantly. I wanted someone there – pretty much as a witness.
[11] Affidavit of Mr Houston filed 19 July 2024, p65 of 76 Annexure 5.
The father and his mother were cross-examined extensively about their presence at Ms L’s home during the early hours and the activities they were involved in whilst there for some three hours or so.
The father and paternal grandmother arrived to see the mother not long after 1am. The father and paternal grandmother have each given evidence about the unsafe and unclean conditions they found when the father and paternal grandmother arrived at Ms L’s place where Ms B and the babies were staying. The father and his mother have each given evidence that they were immediately alarmed by finding Ms B and the twins living in appalling conditions in what the father called “a drug house”. Their evidence is that the smell of cannabis permeated the unit, as soon as the door to the unit was opened. The drug house had domestic rubbish strewn around the kitchen and was in the most unhygienic conditions. They observed that there were different people staying in different rooms.
The father and paternal grandmother gave evidence of the steps they each subsequently took for hours attempting to help Ms B calm and to reassure her that she would not be homeless. Ms B was worried and distressed and needing help including help to breast feed the twins. The father and his mother said that Ms B told them her parents were abusing her and trying to take the babies and that because of this, she left the maternal grandparent’s home in a hurry. Subsequently Ms B said she had no medication. The father and his mother gave evidence that when they arrived and saw the babies, that the babies were cold, unwrapped and only wearing a singlet and leggings.[12] The father and paternal grandmother ensured the newborn babies were properly wrapped up and they encouraged and assisted Ms B to breast feed the babies, before finally putting them down to sleep. They report that Ms B was acting erratically, she changed her clothes twice, she removed a lot of her clothing to breast feed the babies telling the paternal grandmother that the babies needed a feed, and they needed “skin on skin”.
[12] Transcript of proceedings (9 September 2024) p493.
The father and paternal grandmother each confirm that Ms B’s former partner Ms L and her new partner Ms M were in a room together using cannabis, the smell of which was quite overwhelming, and they were most troubled that Ms B had been likewise using cannabis particularly when she was very obviously mentally unwell. The father and paternal grandmother have given evidence as to Ms B being in a confused state, crying, talking rapidly, not being able to focus, changing her thoughts from moment to moment and being utterly distracted. Not only were there drugs being used in the unit, but the father also says there were other people just walking in and out of the unit. The father and his mother were troubled about Ms B’s deteriorating mental health and very troubled about the plight of the twins being in this environment and likely not being fed or cared for properly without Ms B being helped to focus on doing so. The paternal grandmother after some hours of helping Ms B to focus and to breast feed the twins, left the unit and decided to wait in the car for the father. The father left the unit finally around 4am when things seemed settled. He was extremely worried about Ms B, and the babies. The father says that when he left the twins, they were sleep-wrapped, changed and back in their porta cot.
The father says he went home and slept for a couple of hours. When he woke, he attempted to contact Ms B through Ms L to check if Ms B and the girls were okay, but his messages were ignored. The father says that after what he had witnessed earlier that morning and upon not receiving any response to his messages, the father decided to ring the maternal grandmother and tell her how worried he was about Ms B and what had happened the night before during the early hours of the morning. The father asked the grandmother about the circumstances of Ms B’s departure of their home and relayed to the maternal grandmother what he had seen and the circumstances in which Ms B and the babies were staying. The father explained how unsettled and unwell Ms B was, and that he was very worried about Ms B and the babies.
Upon hearing the father’s concerns, the maternal grandmother said “Look, we’ve got the number plate of [Ms L]’s car. We rang the police, we’re tracking them down. We know you know where she is. It’d be a lot easier if you can just tell”[13], to which the father agreed to give the maternal grandmother the address as he was most anxious in particular about the babies being left in the care of Ms B who was very unwell, and in terrible surroundings. The father said he called the Moyles “due to the fact that because I had the DV and the girls were named on the DV, I didn’t think I had, I was allowed to do really anything. So I came across to the [Moyles] for support as they know [Ms B], or I assume they knew [Ms B]’s mental state, how she operates, how to calm her down, what to do. Because I said I never was exposed to mental health until [Ms B], so I didn’t know what to actually do”.[14] The father says he did not hear back from the Moyles and so he started “ringing every child safety unit in Brisbane”.[15]
[13] Transcript of proceedings (10 September 2024) p513.
[14] Transcript of proceedings (10 September 2024) p514.
[15] Transcript of proceedings (10 September 2024) p514.
Unbeknown to the father, when the maternal grandparents had been given the information as to the whereabouts of Ms B and the babies, the grandmother immediately called the police first, and then subsequently the Department of Child Safety (“the department”). According to the grandmother the police asked her whether she had called the Department which she had not yet done. The grandmother says that she wanted the Police to just check that Ms B was okay as she knew that Ms B needed space from her following their disagreement. It appears the grandparents were unable to personally contact Ms B as when Ms B was leaving the maternal grandparents home with the babies, and maternal grandmother said that Ms B had given her a phone number of where she was going, however it turned out to be the wrong number.[16] The maternal grandmother having called the Police to do a welfare check, then later called the Department and told them the whereabouts of Ms B and the babies, and the concerns expressed to her by the father.
[16] Transcript of proceedings (7 August 2024) p97.
Once the Police received the report from the maternal grandmother, the police attended for a welfare check at the request of the maternal grandmother. A summary of the body-worn camera footage of this interview is contained in exhibit F6. This summary reports:
Welfare check at [BLANK]. [Ms B] talks about her parents ripping the babies from her arms. Talks about her mother driving erratically and shouting at her. [BLANK] were nursing the babies. The alleged breaches were messages [Mr Houston] asking about the children and [Ms B]. Saying escaped from an abusive environment at her parents place. Was in a shelter. Then living in a place at [Region H]. Stated that she needed a restraining order against her parents. 3 days of no sleep. Her Dad controls her finances. Concerned that she didn't have her [medical] script. No mention of the $15,000 offer.
Upon the grandparents’ concerns, the Child Safety Officers (“CSO”) also attended upon Ms L’s place. The CSO’s were, like the father and his mother, equally concerned at the environment in which Ms B and the babies were staying. In particular they had serious concerns about Ms B’s mental health and realized that Ms B was most unwell, physically and mentally, and further that she was not able to look after the babies. The Departmental records note that:[17]
[X] and [Y] were both sighted to be in the care of [Ms B]’s friends – [Ms M] and [Ms L]. [Ms B] then arrived with belongings for the children (nappies and pram et cetera). [Ms B] was interviewed and was not able to keep on topic of conversation-she rambled and struggled to be redirected back to different parts of the conversation. [Ms B] advice she had not slept since Monday (this was on Thursday). [Ms B] had [a medical condition] and her medication was [in Region H]. [Ms B] stated her and the children had been staying with [Ms M] and [Ms L] since last night. [Ms B] stated that the father of the children – [Mr Houston] attended with his mother last night and “nearly killed the children” as he left them undressed for 15 minutes and they were shivering/turned blue. There was serious concern for [Ms B]’s mental health throughout the conversation.
[Y] presented as lethargic and slow to respond throughout the visit despite touching her to try and get her to move. She was observed less active and alert than [X]. [Ms B] agreed to attend the hospital for her babies to be cited (sic) by medical staff due to their presentation and for her own health (due to being in significant amount of pain). [Ms B] agreed for CSO to transport her however on the way to the car fainted. Ambulance was then called and [Ms B] and the two children were transported and babies were admitted overnight. [Ms B] will be assessed for mental health overnight.
An immediate safety plan was therefore entered into whereby [Ms B] agreed she would not discharge [X] or [Y] from the hospital overnight and CSO’s would meet with her again tomorrow. Safety plan attached.
Head doctor and ED social worker confirmed [X] and [Y] would be kept in overnight for observations.
[17] Exhibit ICL1.
As shown above, the Child Safety Officers had serious concerns for Ms B throughout the conversation.[18]
[18] Exhibit F6.
When the Department of Child Safety attended with priority upon Ms B in 2021 she agreed to go to hospital with the babies, however it seems Ms B initially fainted and subsequently an ambulance was called. Ms B and the babies were taken to hospital via ambulance and Ms B was admitted into the mental health unit at N Hospital. The babies were also kept overnight to be assessed medically and monitored and ultimately spent three nights in hospital it seems.
On their arrival at N Hospital, the medical records of N Hospital show that the babies were examined and that they had not suffered from exposure, nor did they show any effects of allegedly being so cold they turned blue or that they “could have been killed” by being left unwrapped (as stated by Ms B). The N Hospital notes have been subpoenaed in this regarding the health of babies and Ms B[19].
[19] N Hospital Records for Ms B and the father (Aid Memoire).
Those hospital records show that X (one of the twins), a premature baby, was admitted to N Hospital Emergency Department on that date, (so newborn) with concerns around feeding (small weight) and being left outside for a period for 15 minutes causing her to turn blue/mottled. [X] was admitted to the Paediatric ward for observation (0ximetry) and is likely to be discharged on […]. The hospital records record that X demonstrated adequate growth weight on admission, no concerns on examination for NAI, no recurrent clinical episodes of cyanosis; remained afebrile, formal oximetry not completely normal with possible immaturity, but satisfactory for discharge (it is to be recalled that these baby twins had the continued need for some oxygen support after discharge following their birth). The notes included routine examination and follow up to be conducted with their general practitioner. Almost precisely the same observations were made in relation to Y (the other twin) with the allegation of allegedly being left outside for a period of 15 minutes causing her to turn blue/mottled also being made and there be no issues of concern at all by the hospital on admission. I adopt the contents of those notes as being a truthful account of what occurred to the twins upon their admission.
The N Hospital records show that there is no evidence that the babies were medically unwell or harmed in any way from being left unwrapped for 15 minutes, or at all, whoever did it or however they became unwrapped and that they were not in any danger of dying or any danger at all. The contrary is the position. I note at the children’s next doctor’s appointment, the notes indicate there was a “weigh-in yesterday. Next appt on […]. Gained 100grams each. Limiting times out on portable oxygen bottles. Almost through large bottles at home too. 4 bottles in total. Should get 3 weeks from a bottle”.[20]
[20] Exhibit ICL1.
At the time the Department attended upon Ms B at Ms L’s house (the drug house) the Departmental notes support the observations and concerns as expressed in the evidence of the father and the paternal grandmother. However, as will be explained in greater detail throughout this judgment, at this trial in 2024, each of the maternal grandparents now unequivocally believe that in 2021, having been assisted by the father to find Ms B at a time when they were extremely worried and not knowing where she was, have now recast their own version of events wherein the father’s assistance of Ms B is now reported by them as a falsehood. His helpful phone call explaining where Ms B was and the deplorable conditions she and the babies were in is now turned around to blame the father (and his mother) for causing harm to the children by leaving them cold and unwrapped, and his phone call is described as part of a premeditated plan wherein the father deliberately distorted and escalated or “elevated” what he saw in order to have the parents contact the Department, and then for the Department to actually remove the children from Ms B, or threaten her with removal. The maternal grandmother has put forth her theory that this was deliberately done by the father so that the maternal grandparents would report the exaggerated information to the Child Protection Department with more concern and priority than was warranted. This narrative of the maternal grandparents then moves to the hypothesis that the threat of having her children taken by the Department or the father, was so worrying for Ms B that 5 weeks later she committed suicide. Therefore, it is reasoned by the maternal grandparents, the father is responsible for the death of Ms B. This belief is held tightly and unequivocally by each of the maternal grandparents. This was demonstrated several times during their cross-examination when they were given opportunities to make concessions or take an alternate view, however, each affirmed their strong views against the father.
Events following … 2021
After the intervention of the Department, the children were discharged into the temporary care of the maternal grandparents in 2021 in circumstances where there was a temporary protection order against the Father (with Ms B and the children as aggrieved) and Ms B remained in the mental health unit. The father was not aware of this temporary arrangement at the time. The father’s evidence is that he did not know where Ms B had been taken, or where the babies were following these events.
The maternal grandparents in their interactions with the Department at this time was that they were actively raising the issue of the father’s alleged domestic violence towards Ms B and his mental health of the father as barriers to the twins being given to their only remaining parent, their father.
The subpoena records show that the day after Ms B’s death, the maternal grandmother went to the Police station to report a breach of the Domestic Violence Order between her then deceased daughter and the father. The maternal grandmother urged the Police to take criminal action against the father for what she alleged was a criminal act and a breach of the Domestic Violence Order by the father in leaving the babies cold and unwrapped, after he and the maternal grandmother had attended upon Ms B at her request and helped Ms B feed the twins. The maternal grandmother urged Police to accept that this conduct constituted a breach of Ms B’s Domestic Violence Order and that the father should be prosecuted accordingly. The maternal grandmother went further and said that if the babies had not been left with no clothes on, they would not have needed to go to hospital and by not putting clothes on the babies [HOUSTON] (the father) has breached the DV Order by not being of good behaviour towards the children.[21] The Police records show that the maternal grandmother had attended with signed affidavits from herself and her witnesses. The Police asked the maternal grandmother why she was trying to have the father breached under the terms of a Domestic Violence Order when her daughter had died the day prior, and the maternal grandmother said that they needed to report this matter as they are concerned that DOCS will give the babies to their father after the 28 day guardian order had expired. She stated she did not believe that the children were safe with the respondent. The Police noted that the father had been invited to attend at Ms L’s house on that night. Despite much urging by the maternal grandmother, the Police did not accept that a breach of the Orders had occurred.
[21] Exhibit F6 - Police Report late 2021.
An updated temporary protection order was issued to include the babies’ names (noting the previous order was issued when the babies were not yet born).
A Court Assessment Order was made in 2021 at the Children’s Court at Suburb N, which was to expire a month later. At the time of making this Order Ms B was still in hospital and the father was having supervised contact twice a week with the children who had been placed with the maternal grandparents.
On the following day Ms B was transferred from the mental health unit at N Hospital to a residential establishment known as O Centre.[22]
[22] Exhibit F7.
By this stage Ms B and the father have been separated for 8 months and it was more than two weeks after the father and his mother attended upon Ms B to help her in response to Ms B’s pleas for help. The O Centre records show that once Ms B moved into this establishment, she met up with a person she described as her new boyfriend. His name was Mr P.
The SCAN team information reports that whilst Ms B was in the care of O Centre she had weekend leave with her new boyfriend (the records state a date in the following month however this is an obvious typographical error as Ms B had died by then). While on leave Ms B rang O Centre disclosing she had inflicted self-harm and seeking GP support.
Two days later Ms B called O Centre to advise she was staying out another night. The next day, Ms B went on leave again with her boyfriend, she was advised by O Centre to return at 9pm. Ms B called back at 7.30pm requesting to be picked up as her boyfriend would not walk her back to the facility. Ms B is reported as being highly agitated and arguing with staff to the point that staff felt unsafe. It is reported on this same day that Ms B had regret about the incident the night before and questioned whether she would be discharged today, visited her children then went on overnight leave to spend time with her boyfriend.
The departmental records show that the maternal grandparents had a meeting with two CSO’s (Ms Q and Ms R) on the following day regarding the progress of the children, reunification between the children and father and concerns about Ms B’s mental health. I note some particular issues raised by the grandparents to the department were: “feedback from [Ms S] this morning – re. [Ms B] has a new partner and has been out drinking. Contacting girl at mother’s group – […]. If [Ms S] has been gossiping about me it’s all lies”; “[Ms B] has been telling girls at mother’s group that we used to pimp her out. Very emotional”; “When she was 16 she was being trafficked by men for drugs around Brisbane. Stopped when she [self-harmed] and then she went to hospital and then teen challenge at [N Hospital]”; “might be well for 2-3 weeks before she is triggered”; “[Ms B] wanted to protect them from the environment”; “marijuana - [Ms B] would tell us. There is a boarder in the house. There is not a boarder there currently”; “Still so vulnerable. Hoped they could learn protective behaviours before being put into those environments”.[23] I note Ms B also told the father that she was emotionally, psychologically and sexually abused by being prostituted out by the maternal grandparents.
[23] Exhibit ICL1.
On the following day it is reported by O Centre that Ms B returned from leave mildly elevated and intrusive and was somewhat disruptive during sensory modulation meeting. Ms B left the facility for overnight leave, advised she would be back the next day for DBT group sessions. Ms B went to a meeting with child safety expressing her wish to share custody of the twins with her parents. After the meeting, Ms B is reported to be distressed, took her medication and went for a walk. Ms B went on overnight leave and the nextday Ms B was reported as still on leave.[24]
[24] Exhibit F7.
Two days later Ms B was still an inpatient at O Centre and during her leave from that institution she was tragically killed at age 19.
The maternal grandparents did not tell the father that Ms B had died. The father received a call from the Department two days after she had passed to say that his visit with the twins would have to be rescheduled due to Ms B passing.[25]
[25] Transcript of proceedings (9 August 2024) p278.
Commencement of initial proceedings – September 2021
The first set of proceedings were commenced by the grandparents on 22 September 2021, shortly after Ms B passed away. At the time the grandparents commenced proceedings the children were living with them pursuant to a 28 day Court Assessment Order obtained by the Department of Child Safety who took the children into their care once the twins were discharged from N Hospital and where Ms B remained at that point.
In late 2021 the temporary protection order was made final and was set to expire In mid-2026.
Subsequently, the litigation in this Court proceeded to an interim hearing before Senior Judicial Registrar McDiarmid on 15 October 2021 who made interim Orders that upon expiration of the Children’s Court Order that the children live with the father and spend time with the maternal grandparents.
On 30 September 2022 the parties attended Family Report interviews with Ms T. That report was released on 11 November 2022 and recommended the children live with the father.
During the first round of litigation the maternal grandparents had raised the issue of Family Violence in the father’s household as an issue of concern (details of this violence will be explained later in this judgment). They knew about this because the father had told them of family violence perpetrated by the paternal grandfather towards himself and the paternal grandmother.
On 22 November 2022 final parenting Orders were made by consent following a mediation between the parties (“the 2022 Final Consent Orders”). These Orders stipulated that the father have sole parental responsibility and that the children live with the father and spend time with the maternal grandparents. The maternal grandparents now say that they only agreed to the 2022 Final Consent Orders because the father had told them that the situation involving violence from the paternal grandfather towards the father and his mother had been taken care of.
The maternal grandmother agreed that prior to entering into the 2022 Final Consent Orders with the father that she had seen a large number of subpoenaed documents which were issued at the first hearing. The maternal grandmother accepted she had access to and viewed the documents listed in the index of subpoenas (Exhibit F1) which included access to Queensland Police records for the father and paternal grandparents; the child safety records for Ms B, the father and the paternal grandparents; a patient health summary for the father from U Service; and patient summary or the paternal grandparents and children. It was also accepted by the maternal grandmother that in her most recent affidavit she has confirmed that some of the issues she now refers to are the same issues seen in the previous proceedings and importantly this specifically includes the domestic violence in the father’s home and his mental health.[26]
[26] Transcript of proceedings (7 August 2024) p10.
Post 2022 Final Consent Orders
In early 2023 an incident of domestic violence occurred in the father’s home between himself and his father. As a result of this family violence from the paternal grandfather, the father asked the maternal grandparents for their support and whether he could temporarily leave the children with the maternal grandparents until the violence in his home settled down. They accepted the twins could stay with them following this request. The twins were eventually returned.
It seems that the maternal grandmother has then contacted the father’s ex-girlfriends asking questions about what life was like in his home. Both of these ex-girlfriends have provided affidavits in these proceedings on behalf of the grandparents, however neither of these affidavits are now relied upon by the grandparents. One ex-girlfriend, Ms V, was at a point of helping the maternal grandparents against the father, however, Ms V subsequently re-partnered with the father and refused all further contact from the maternal grandparents. Ms V said that the child of the relationship she had with the father “W” was his child, but she has subsequently changed her mind and after she and the father separated for a second time, Ms V has told the father that W is not his child. The father has given evidence that he has held and loved W, and he feels a connection with this child. He says he does not know how to go about getting Ms V to do a DNA test.
Withholding of children
Order 3 of the 2022 Final Consent Orders states that the father be permitted to relocate with the children to a place within the State of Queensland no more than four (4) hours’ drive from his current residence, in Brisbane. The Orders’ specifically provided that when the father relocates the children pursuant to the Consent Orders, that the children would spend time with the grandparents in person and by telephone. The time for the grandparents to spend time with the children was varied depending on the father’s residential location. The father says that despite these final Orders he facilitated additional time between the grandparents and the children. The maternal grandparents say that they saw the children more often than was provided for in the Final Consent Orders too, though their comments are tinged by some criticism of the father for doing this.
The father says that he spoke with the maternal grandfather about the prospect of purchasing land in Town Z as the maternal grandfather was more experienced in such matters. The father believed at this time that he had a good and close relationship with the maternal grandparents. The father’s parents purchased property in Town Z following advice from the maternal grandparents and says that he told the maternal grandparents when the time was approaching for him to relocate, in line with the provisions to relocate in the 2022 Final Consent Orders, that he would make sure that the twins could see lots of them before the relocation.
The father went further to say that in preparation for the period he would be heavily involved in packing up and relocating and setting up his new home in Town Z, he asked the maternal grandparents if they would have the twins for four weeks, returning them to him on 12 August 2023. The grandparents agreed to this. During this time that the girls were staying with maternal grandparents, the father said he visited them each week and believed that he and the Moyles were happy families. However, at the point of their agreed return date, the grandparents much to the surprise of the father, withheld the twins from him and refused to return them to the father.
Two days before the children were to be returned to the father by the maternal grandparents, pursuant to their oral agreement to look after the children whilst he made arrangement to relocate, the maternal grandparents emailed the father advising him that they would not be returning the children. On the same day, 10 August 2023 the maternal grandparents initiated further legal proceedings in this Court, recommencing the litigation and this time seeking the children live with them and that they have sole parental responsibility.
On 24 August 2023, the father filed an interim application seeking an urgent recovery Order of the twins who were being withheld from him.
Reversal of the 2022 final consent Orders
Following an interim hearing on 11 October 2023 Senior Judicial Registrar Thiele made interim Orders effectively reversing the living arrangements set out in the 2022 final Consent Orders so that the children would now live with the grandparents. Further, the time the children would spend with their father was limited to a period of up to two hours each Sunday in Town AA, with such time to be supervised by the paternal grandmother. This decision was based on the allegations now made by the maternal grandparents (ongoing domestic violence in the home of the father by the paternal grandfather towards the father and paternal grandmother and the father’s mental health issues). This was a very significant change to the lives of the children and their association with the father with whom they had been living full-time since October 2021 (a period of two years). The ICL was not appointed until after the interim hearing on 11 October 2023 in this second round of litigation.
After the interim orders were made giving the father only two hours a fortnight, supervised, the father has maintained his level of commitment. He explained what a shock it was to receive an email from the maternal grandparents a day or two before they were to be handed back to him, saying that they were not being returned to his care. He said there had been no concerns expressed about his care by the Moyles at all. He explained I was very distraught and shattered when I heard that, and I started panicking because I just couldn’t believe it. Yes. [27]
[27] Transcript of proceedings (9 September 2024) p456, line 15 onwards.
In this second round of litigation, the final hearing for this matter has proceeded over six days. Each party has been legally represented by Legal Aid. The children have been independently represented by the Independent Children’s Lawyer.
COMPETING POSITIONS
The applicant grandparent’s position
The applicant grandparents sought to rely upon the affidavits filed by each of them on 10 July 2024, their amended initiating application filed 10 July 2024, and the notice of risk filed 10 August 2023.
The grandparents jointly seek sole parental responsibility of the children, for the children to live with them and spend time on a graduating scale with the father, depending on the location of the father. Subject to a range of conditions, if the father is to live within 40km of the children/maternal grandparents, the children will spend each alternate Sunday from 9am to 5pm with their father. If the father lives outside of 40km from the children, they will spend the first Sunday of every month from 9am to 5pm in Brisbane. This arrangement is to continue until the children are aged five (noting at the time of trial the children were aged three).
Once the children are over the age of five, the maternal grandparents proposed that subject to a range of conditions, the children spend time with their father from Friday at 3pm to Sunday at 3pm each alternate weekend, if the father resides within 40kms of the children/maternal grandparents. If the father lives outside of a 40km radius of the children/maternal grandparents, then the children will spend the first weekend of each month from Friday at 5pm to Sunday at 3pm with their father.
Until the father has undertaken these prerequisites listed below, the time between the father and the children is to occur supervised by the paternal grandmother.
The conditions imposed upon the father in Order for the children to spend the time proposed by the maternal grandparents are:
(1)the father undertaking counselling for a period as recommended by the Independent Children's Lawyer;
(2)completion of an anger management course as recommended by the Independent Children's Lawyer;
(3)completion of parenting courses as recommended by the Independent Children's Lawyer; and
(4)any further therapy as recommended by the Independent Children's Lawyer.
There are also Orders for holiday time dependent upon the age of the children (starting with one week a year after the age of five, moving up to two weeks a year once the children turn 10), special occasions and cultural events. In relation to cultural events the maternal grandparents proposed Order is that the children have the opportunity to attend a significant cultural ceremony, upon prearrangement with no less than 14 days-notice, subject to the applicant maternal grandparent’s availability to facilitate, with confirmation sought two days in advance. This seems to involve the grandparents facilitating or perhaps attending the cultural events. The second order sought in relation to this is that the applicant maternal grandparents will invite the father to any significant cultural ceremony or event that the children are participating in or attending when appropriate and if it benefits the children.[28]
[28] Amended Initiating Application filed 10 July 2024, Orders 12(f) and 12(g)
Mr Selfridge of Counsel submitted on behalf of the grandparents that if the Court was against him that he seeks the Court to consider reinstating the final Orders made by Consent on 22 November 2022 and asks that the children spend as much time as possible with the maternal grandparents.
The father’s position
The father sought to rely upon his amended response filed 19 July 2024, his affidavit filed 19 July 2024 and an affidavit of his mother, the paternal grandmother, filed 19 July 2024.
The father seeks final orders that the children live with him, that he has sole parental decision making and the children spend time with the grandparents, originally after a period of 12 weeks following the making of these Orders then supervised for a period of time. By the end of the trial, however, the father no longer pressed for Orders providing for a lengthy moratorium wherein the children would spend no time with the maternal grandparents as recommended by the Family Report writer Ms E for either 12 weeks or longer as was recommended.
As to time with the maternal grandparents, the father also no longer sought Orders initially proposed that the grandparents spend time with the children at a supervised contact centre in City BB for a period of up to two hours per month and thereafter for a period of five hours once a month in the City BB area. Instead, the father largely sought Orders in line with the proposal of the ICL. The father adopts the position of the ICL pursuant to the orders handed up, save for some minor changes, including time at Christmas.[29]
[29] Transcript of proceedings (11 September 2024) p 627-628.
There are also further orders for communication and special occasions.
The Independent Children's Lawyer
The ICL filed a case outline stating that there should be a return of the Final Orders made 22 November 2022 with the necessary amendments to reflect the legislative changes.
In final submissions, the ICL submitted in general terms that the Orders sought are for the father to have sole parental responsibility in decision-making for the children; the children live with the father; that the children spend time and communicate with the maternal grandparents, generally on the last weekend of every month from 10:00am Saturday until 3:00pm Sunday. The Orders handed up by the ICL have some provision for telephone time, and also some provision for holiday time commencing in 2025 and thereafter. There are also some restraints sought by the ICL in terms of topics to be spoken to or in front of the children, the father to obtain a mental health care plan and to seek psychological/psychiatric assistance as needed.
The ICL’s position in relation to a moratorium of time or supervised time, which was recommended by the Family Report writer, so far as it relates to the grandparents is not supported.
THE LAW
Orders in respect of children are regulated by Part VII of the Family Law Act 1975 (Cth) (“the Act”). A “parenting order” is defined at section 64B of the Act. The Court may make such parenting order as it considers proper[30].
[30] Subsection 65D(1) and within the context of the objects of the legislation namely to ensure that the best interests of a child are met, including by ensuring their safety and to give effect to the 1989 Convention on the Rights of the Child and the fifty-four articles set out therein.
Subsequent to the Family Law Amendments Act 2023 (Cth) applicable to hearings from May 2024, section 60B has been replaced with the new objects of Part VII listed as follows:
(a)To ensure the best interests of children are met, including by ensuring their safety;
(b)To give effect to the Convention on the Rights of the Child done at New York 20 November 1989
The Convention of the Rights of the Child includes article 30 and 31 as follows:
Article 30
In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.
Article 31
Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
Following on from the recent amendments to the Act, the Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2). The matters to be considered include:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views[31] expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
[31] By virtue of section 60CE, nothing in Part VII permits the court or any person to require the child to express his or her views in relation to any matter.
In contemplating the foresaid matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to a child, or a member of the child’s family[32].
[32] Subsection 60CC(2A)
Subsection 60CC(3) requires the Court to consider the children’s right to enjoy their culture as defined in subsection 60CC(3)(a)[33] together with the likely impact of any proposed parenting Order upon that right.
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii)to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
[33] (3) For the purposes of paragraph (1)(b), the court must consider the following matters:
Section 60CG of the Act further requires a Court when considering what parenting Order to make to ensure that whatever Order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence Order.
Under section 61F of the Act when considering parental responsibility and its application to Aboriginal or Torres Strait Islander children, or identifying persons who have exercised or who may exercise parental responsibility or a child the Court must further have regard to any kinship obligations and child-rearing practices relevant to the child’s cultural experience and in doing so have regard to those persons who have exercised, or who may exercise, parental responsibility for a child[34].
[34] Section 61F
Section 64C of the Act provides that A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views[35] expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
[35] By virtue of section 60CE, nothing in Part VII permits the court or any person to require the child to express his or her views in relation to any matter.
Section 64C of the Act provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person and Section 65C allows specifically for grandparents to bring an application in so far as it relates to parenting Orders. Importantly following the Amendments the objects of the Family Law Act are now to ensure the best interests of children are met including by ensuring their safety and to give effect to the Convention on the Rights of the Child made in New York on 20 November 1989.
The applicants in this matter are the maternal grandparents and the respondent is the father of the children. There is no legal presumption in favour of a biological parent. The ICL whose submissions on the law I adopt, referred to Kay and Jasper and Ors [2007] FamCA 1646 a decision of Justice O’Reilly and the reference therein to a decision of D and F [2001] FamCA 382, a Full Court decision comprising of Elis, Kay and Warnick JJ at paragraph 56 which states:
There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child’s welfare.
It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.
That case also refers to the Full Court in Rice v Miller (1993) FLC 80,240:
The fact of parenthood is to be regarded as an important and significant factor.
I will now turn to consider the evidence and each of the relevant section 60CC considerations.
THE EVIDENCE
Observations of the maternal grandmother
The maternal grandmother, Ms Moyle, is a very well-educated, articulate woman. The grandmother refers to herself as being educator. She holds qualifications in education. The maternal grandmother is an extremely confident witness who explained that in her professional life, she travels the world giving presentations on her child protection-related work, which she is quite passionate about. The maternal grandmother writes books and does presentations on her area of expertise.[36] The maternal grandmother explained to the report writer the basis of her having an interest in the topic went back to a childhood experience of her own when she was about six years old.[37] I have no doubt she would be excellent at her work.
[36] Transcript of proceedings (7 August 2024) p77.
[37] Family Report prepared by Ms T, p10.
The maternal grandmother has an extremely dominant personality and is quite overpowering. At various times it was most difficult to get her to focus on what she had been asked as opposed to what she wanted to say. Often, she started answering the question before Counsel had finished asking the question. The maternal grandmother was extremely confident and firmly spoke over Counsel and the bench at times, wanting to fill the Courtroom with her views and her voice and control the process. The maternal grandmother was very matter of fact when explaining her daughter’s death and all matters associated with it.
The maternal grandmother is undoubtedly a loving grandmother, however, overwhelmingly I found the grandmother to be consumed by anger towards the father and his mother. Throughout her testimony, the maternal grandmother’s predominant attitude was one of anger and impatience at not being listened to by the authorities or the Court and being extremely mistrustful of almost anything said or done by the father. At times her anger was palpable in the Court room, particularly on the two main occasions that the maternal grandmother herself became loud, almost screaming, elevated and blindly angry with the father. Her anger was raw and unfiltered. She directed that anger towards the father who she vehemently believes, and has expressly stated, is responsible for the death of her daughter Ms B.
The maternal grandmother is loath to admit any failings on her part in terms of her parenting or her views of the father. The maternal grandmother (and grandfather) has been very active in trying to ensure that her grandchildren live with herself and the maternal grandfather as she considers that the father represents a significant and unacceptable risk to the twins. Primarily this is because of the maternal grandmother’s (and maternal grandfather’s) belief relating to the various risks associated with the twins having a relationship with their father. They refer to his alleged domestic violence towards Ms B, the father’s mental health and the risks associated with Domestic Violence in the father’s family circle in the past and likely future from the paternal grandfather. These fears are added to her unshakeable belief that the father has deliberately lied to her and been manipulative in order to portray her in the worst possible way to ensure that the twins do not live with her.
As can be seen in the Family Report and Department records, the maternal grandmother and grandfather have tried to have the father charged with domestic violence offences of breach of Orders after Ms B’s death. The maternal grandmother has with the grandfather, also campaigned strongly to have the Police charge the father with a criminal offence of criminal neglect in relation to the twins.
The maternal grandmother has a very black and white way of thinking, there is little to no room for a grey area on any topic and she is rigid in her views once they have been formed. The maternal grandmother seems to embrace a subject and then sees herself as somewhat of an expert which has happened on matters such as education, health, protective training associated with the twins and her views about immunisation which are different to the father’s. The interim consent Order wherein the twins live with the maternal grandparents provides that the grandparents will (consult/advise) the father of all matters to do with the children, however, the evidence shows that the maternal grandmother has not observed this obligation as seen in her decision to teach the children her version of “protective behaviour” after they started living with her, (aged 2) without reference to the father.
The grandmother also considers that even though she is not Aboriginal, she will be in a position to find out what information the children need to know, what cultural celebrations the twins need to attend, and she will take them to a ceremony (as she says) or teach them. The maternal grandmother has been disrespectful and challenged the truth of the father’s cultural beliefs. On hearing the father explain that it was of cultural significance to his family and mob, to observe with some reverence the first haircut of a child, the maternal grandmother’s response was that she did not really believe this as she had spoken to a neighbour who was an Aboriginal healing person, and that person had never heard of the practice. All of these beliefs combine to be a powerful force of negativity, mistrust, intolerance and lack of respect for the father by each of the maternal grandparents.
There are various passages in the transcript that show the yawning gap between the position of the father and his strong cultural beliefs and practices and the position of the grandparents who seek to take over the education of the children in relation to their indigenous culture. I will discuss this further in the judgment with consideration to the s60CC factors.
Evidence of the maternal grandmother
The maternal grandmother during cross-examination was questioned as to whether she had read the report from the Department in respect to their findings in 2021 to which she agreed. Counsel then asked the grandmother whether she accepted that Ms B was simply not in a position to look after the twins at that time, to which the grandmother replied “Totally accept that, yes. That’s never in question”.[38]
[38] Transcript of proceedings (7 August 2024) p100.
The maternal grandmother, who did not at any stage attend Ms L’s unit where Ms B and the babies were staying, said that she thought it was better that the Department went to see Ms B and that Ms B had made it really clear she did not want our involvement, so we were respecting her wishes.
The maternal grandmother now gives evidence that she believes the father lied to her when he rang her in2021 and reported his deep concerns about the welfare of Ms B and babies. The maternal grandmother says that she does not believe that the father and his mother did all of the helpful things they said they did for hours to help Ms B and the babies. Instead, the maternal grandmother gives evidence of her strong belief that Ms B was telling the truth when Ms B told the Department the father and his mother left the babies cold and unwrapped, that the babies were shivering and so cold that they were turning blue, and that the father and his mother nearly killed the babies. The maternal grandmother says that that her belief of what actually occurred that night is based on what she was told by the mother’s ex-partner Ms L and her girlfriend Ms M, who according to the father had spent the early hours of the morning smoking cannabis, and Ms B who was having a psychotic episode.
Ms L made a statement to police in late 2021, contained at exhibit F6, that suggests that she went to the maternal grandparent’s home (the Moyles’ residence) twice that day at the request of Ms B, to collect Ms B because Ms B told her that she thought she was being kicked out by the Moyles.[39]
[39] Transcript of proceedings (11 September 2024) p638.
Counsel submitted in final submissions: that “Notably, [Ms L] says that the [Moyles] were withholding the car capsules for the twins so that [Ms B] could not drive away with the girls. [Ms L] offers to police that, “When I write my affidavit with [Ms B]’s parents, I will have more information.” When police ask her, “Why are you writing an affidavit with [Ms B]’s parents,” she says she doesn’t know.” [40] The maternal grandparents have not produced an affidavit from Ms L in these proceedings.
[40] Transcript of proceedings (11 September 2024) p638.
In cross-examination when the maternal grandmother was questioned by Counsel for the father about whether the children being left unwrapped was the fault of Ms B because of the mental state Ms B was in, rather than the fault of the father who says he and his mother assisted Ms B to care for the children. The grandmother responded:
MR DODD: He then, seeing what was there and [Ms B]’s obvious inability to care for her own children, rang her mother, yourself, and spoke to her, yes? And then, as a consequence of that, she [Ms B] got the help that she needed […], as did the girls. Do you accept that?---Yes, but there’s one piece of information that would be helpful for everyone, if - - -
And is – what?---After [Mr Houston] had called us at around 11 o’clock and around the 1 pm time, around the same time as the second call to Child Safety – which is reporting that we were threatening to take the children and report – can somebody read out that second call? And – the point being – is that there was a call made to [Ms B] at around 10 that time, where [Mr Houston] and [Ms K] [paternal grandmother] warn [Ms B] to get out of there because I’m on my way to go and get her. “Hide” was the word that [Ms K] was saying in the background. They were positioning us – that we were coming to go and take her babies away from her, and we hadn’t. I’ve got that phone recording, and I didn’t find out that until November.
So to that, in your mind – so that other piece of information means that – in your mind, does that mean the father was planning something, or - - -?---The only other person to know where [Ms B] was, and who happened to report that the maternal grandparents were threatening to take the children and that the children were starving, is [Mr Houston]. The girls left our house with two tins of formula as top-up feed. They had photographs of milk dribbling out of their mouth when they were at [Ms L]’s place, fully wrapped and warm.
But [Ms Moyle], by the next day, when someone independent is coming to the house, [Mr Houston] – sorry – [Mr Houston] is not there when the Child Safety officers are there, there is concern about the girls presentation and their mother’s presentation. So that can’t have anything to do with the father, can it?---The concern from their presentation was due to the twins being wrapped – left unwrapped the night before. And [Ms B], when Child Safety arrived, was actually on the way to go to see an Indigenous – a doctor at the Indigenous health clinic to get them checked to make sure there would be no – no long-term harm from them being left unwrapped.
So there’s no doubt – just to be clear – there’s no doubt in your mind that the state of the girls [on that date] was as a consequence of the father?---Yes.
No doubt at all?---No doubt at all.
Nothing to do with your daughter?---Our daughter – what do you mean nothing to do with my daughter? Their state?
No. The fact that – no. The fact that it appears, [on that date], she couldn’t look after herself, let alone the children?---I agree that she needed to go to hospital. By that stage, she had not slept. She was doing the best that she could. But even in that state, her intention – she had already booked an appointment to go take the girls to the doctor. She was still acting protectively, even though she was so distressed. She was bribed by – with $15,000 that night by [Mr Houston] to go back to her place, and she said no. [41]
[41] Transcript of proceedings (7 August 2024) p101-102.
Allegations of bribe
As can be seen in her own evidence, the maternal grandmother explained she believed the father had bribed Ms B to go back to his place and that he said he would give her $15,000 to do so.
The maternal grandmother’s evidence is that she firmly believes that Ms L told her the truth when Ms L said that, “the father offered the mother a bribe of $15,000 if [Ms B] gave him the babies”.
The Police records show that this person (described as a witness) told the Police that “when [Mr Houston] was here, he was trying to convince [Ms B] to go to his house. I heard him say that his mum had $15,000 and that mum is willing to lend you some money. [Ms B] replied that she couldn’t accept that. He said if you come back, you and the girls can have my room. I am not sure if he offered [Ms B] the money to get a house or what. Could have been to help for the girls. He said “mums got $15,000 if you want to lend it. She had her own money.”[42] The witness is likely to be Ms L, ex-partner of Ms B, whose unit Ms B was at, or potentially Ms L’s then girlfriend who was also at the home in 2021 when the Police attended to do the welfare check. This version of events is in line with the father’s evidence as to how it was that the reference to $15,000 came up whilst talking with Ms B.
[42] Exhibit F6, p10-11.
Apart from the obvious failure that the grandmother relies on hearsay evidence of a witness she does not bring to court, her account is not in accordance with what a witness is seen telling Police when they did the welfare check. Nor of course is it in accordance with the evidence of the father and his mother, the paternal grandmother.
Overall, considering all of the evidence and the provisions of the Family Law Act 1975 (Cth), I am deeply concerned that in the event the children lived with, or spent substantial time with, the maternal grandparents they would fail to connect with, and maintain their connection with, members of their family and with their community, culture, country and language.
On the other hand I am satisfied that the orders proposed by the father will ensure that the children will flourish in terms of their exposure, enjoyment and immersion within their aboriginal community and culture.
This is a significant issue in terms of the Court deciding the best interests of these young children and their future living arrangements.
PARENTAL RESPONSIBILITY
Section 61CA of the Act encourages the parents of a child, where it is safe to do so, to consult each other about major long-term issues in relation to a child and in doing so, to have regard to the best interest of the child as the paramount consideration. Should a parenting Order deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child, then provision can be made for joint or sole decision-making in relation to all or specified major long-term issues[126]. Any encouragement of consultation is rendered obligatory upon the making of a joint parental responsibility Order requiring each person to consult each other in relation to such a decision and to make a genuine effort to come to a joint decision[127].
[126] Subsection 61D(3).
[127] Section 61DAA.
The maternal grandparents, who are not parents, seek to have Orders that they have sole parental responsibility in relation to all of the long-term decisions relating to the children. The father likewise seeks an Order for sole parental responsibility. The ICL supports the father having sole parental decision making.
In this matter, I am satisfied that the level of acrimony, mistrust, and lack of respect shown by the maternal grandparents towards the father is incompatible with an Order that they have sole parental responsibility about making the long-term decisions for these children. I do not accept that they could put aside their belief that the father represents a serious risk to these children, in order to make decisions based on their best interests. I am satisfied that their decisions will reflect their own extremely negative attitudes towards the father. They hold an unshakeable view that the father is personally responsible for the death of Ms B. This seems to drive their ongoing entrenched hostile attitude towards the father. I am satisfied they have no respect for the father either personally or as the children’s father, nor do they have genuine respect for his cultural heritage or that of the children.
I do not consider that the maternal grandparents will be able to show any objectivity when it comes to making major long term decisions for these children and I do not accept that they would make decisions which enable the children to have an ongoing engagement and relationship with their father, or cultural matters or make decisions that are respectful of the standing and importance of the father in their lives.
Overall, I consider there is no scope for any shared decision making in this context and these circumstances.
I intend to make an Order for sole parental responsibility to the father. The father is a young father, experienced in raising his children and he has only their best interests as his priority. The father is not a perfect parent nor is he immune from criticism. However, he has continued to be committed to the children in difficult circumstances of ongoing litigation where his children were taken from him by the maternal grandparents contrary to the terms of the Court’s initial Consent Orders which specifically permitted the father to relocate with the children. He has parented the children in the past and I am satisfied that he can make appropriate decisions in relation to the schooling, place of living, medical and educational matters and any other long-term issues. The father has shown an ability to engage with and seek out professional help whenever he needs it and he has shown great tenacity in overcoming extreme personal difficulties. He has withstood the constant criticism of his home life by the maternal grandparents wherein he was the victim of family violence. I consider he has the inner strength and commitment to his children to make decisions about the future long term issues for the twins and that he will always prioritise their needs above his own.
EVALUATION
I am satisfied that the maternal grandparents have launched these second proceedings having been determined to conduct a smear campaign against the father. They have probed deeply into the father’s mental health records and all aspects of his life. As a result of the allegations they have made in this Court about the father’s mental health a single expert psychiatrist, Dr KK, was appointed to assess only the father. At the trial the maternal grandparents have refused to accept the evidence of the single expert Dr KK which was that in broad terms, the father’s mental health difficulties have resolved, that the father is a good patient and aware of his mental health frailties and has shown remarkable resilience. They continue to seek Orders that until he does all of the courses and therapy that has been stipulated in their Amended Initiating Application or any other therapies (Order 8(a)-(d)) that his time is to be supervised and to be for a period up to two hours with the frequency dependent on distance as is set out at Orders 9(a)-(c).
I am deeply troubled at the prospect of the maternal grandparents just continuing their efforts to find fault with the father, to ignore the evidence referred to in this judgment and to continue their quest to have the father removed from the lives of these children. There was no insight from the maternal grandparents into the effect of their own behaviour and their negative attitudes about the father upon the lives of the children.
In terms of the Rice and Asplund issue which was raised in this matter, apart from the fact that the previous Final November 2021 Consent Order was set aside by SJR Thiele back on 11 October 2023, I am satisfied that the co-parenting Orders provided for in those Consent Orders is no longer possible given the events that have transpired since that time and the subsequent conduct of the maternal grandparents and their hostile attitude now obviously held by them towards the father.
In their primary position before the Court, the maternal grandparents have been unable to see a single positive for the children even spending unsupervised time with father. The proposals put forth by the maternal grandparents are for the children to live with them, and whilst this occurs the father is to undertake indefinite counselling, anger management and parenting courses and further therapy all as recommended by the ICL. The Orders simply represent ongoing hurdles and indefinite delays and would result in the father spending ongoing supervised time with the children on an indefinite basis. Moreover the Orders sought by the maternal grandparents are not Orders that the Court would make as they are do not resolve the litigation, rather they simply outsource the judicial function to the ICL. The Orders are open ended and no doubt intended to ensure that the litigation continues with no mechanism to resolve the matter finally. The Orders sought would most assuredly lead to further litigation and contravention applications involving disputes about whether or not the courses were adequate or completed sufficiently and who was is to be the arbiter of that decision[128]. The maternal grandparents’ proposal for the father’s time to remain supervised did not alter throughout the trial, despite all of the expert and other evidence. The evidence does not warrant an ongoing Order for supervision of the father. I am satisfied that the father does not represent an unacceptable risk to the children.
Despite all of the evidence before the Court, to the effect that the father’s mental health issues did not preclude him from being a parent, that his PTSD was in remission, and the strength of the relationship between the children and their father, the proposals of the maternal grandparents do not permit the children to have the opportunity for any real relationship with their father now or going forward. I am satisfied that the maternal grandmother in particular has a very unhealthy and intrusive focus on the father and his life. This is evidenced by the maternal grandmother’s efforts in trying to gather evidence against the father from his former partners and the former partners of Ms B (none of whom came forward), the request to the Police by the maternal grandparents to have the father charged with criminal neglect, and to arrive at the Magistrates Court with a barrister to oppose the father’s application to remove the children from the Domestic Violence Order between himself and Ms B.
According to their final Orders sought, the father’s unsupervised time would occur at some unknown point in the future after the father has completed endless courses for unspecified durations.
I am not satisfied that the maternal grandparents are able to put the interests of the children above their own preoccupation with ensuring that the children do not go back to the father given their strongly held beliefs against him.
My strong impression was that the thought of the children living with the father was unthinkable and this was evident from the maternal grandfather’s response to questions asked of him about the future of the children with their father.
For the maternal grandparents, this trial was so much about all of the circumstances after the twins were born and then the circumstances leading up to and the subsequent death of Ms B. Rather than accept that the father went to help Ms B in difficult circumstances given her condition and how worried he was about the plight of the very vulnerable newborn twins, the maternal grandparent are focused on besmirching the character of the father and holding him responsible for their daughter’s death. I accept that, after telling the grandparents about what had happened in 2021 and the whereabouts of Ms B, which the father did in the interests of caring for Ms B and the safety of the twins, the grandparents did not get back to the father and left him wondering what was happening. Subsequently the father phoned the Department as he was highly stressed about the welfare of his new born babies. The father explained that he was out of his mind with worry about the wellbeing of his baby daughters and Ms B.
I reject the allegations by the maternal grandparents that the father and his mother have each tried to harm the newborn twins by removing their wrapping and leaving them cold, or that they harmed the twins in any other way. I accept the evidence of the father and his mother that they spent hours helping Ms B to try and focus and to feed the babies and that they wrapped the twins up and left them fed and snug and warm. There simply is no evidence to support the allegations made by the maternal grandparents and repeated with fervent belief by them that the father nearly killed the babies. This is an absurd allegation allegedly made by Ms B and adopted by the maternal grandparents which is contradicted by the medical evidence and the evidence of the father and maternal grandmother which I have accepted. These are nonetheless serious allegations and reveal the depth of the strongly held views that the maternal grandparents still maintain and believe the father is capable of years after the events. The maternal grandparents accuse the father of also being responsible for Ms B committing suicide. This is a theory they wish fervently to believe, regardless of all of the evidence which has been canvassed in this hearing.
The maternal grandparents seem to have masked their open hostility and mistrust towards the father in the first round of litigation, however in this second round of litigation I am satisfied that neither the maternal grandmother or grandfather truly respect the father, nor do they trust the father. Whilst the maternal grandparents are perfectly entitled to form their own beliefs about the father, I am satisfied that their deep mistrust and hostility towards the father profoundly undermines any advantages of their proposal for the children to live with them. The maternal grandparents’ beliefs about the father are so serious and reveal their underlying contempt for him.
Given the strength of their unshakeable beliefs about the father, I consider it is just a matter of time before those strongly held negative views and distortions of the truth regarding the father are known to the twins either directly or indirectly. There is no sign at all from either of the maternal grandparents that they have the capacity to contain themselves when it comes to expounding their views about the father as they have done with the Police, the Child Safety Officers, and this Court. As I have said earlier in this judgment, the maternal grandmother’s explosions in Court about the father being a liar and untruthful were powerful and palpable. Their accusations against the father (and his mother) are of such gravity, and so deeply held, it is inevitable that their real feelings about the father will surface in a myriad of ways over the coming years and flow on to the children. There is no scope in their thinking for an alternate view. They were given opportunities at the trial to change their views and they refused to do so.
I have accepted the father as an honest witness who told the truth during his testimony. He was pressed to breaking point several times under cross-examination over more than two days. I am satisfied that he is genuine and acting in good faith in his desire to have the children live with him. If the negative campaign of the maternal grandparents through this second round of litigation had not been launched, I am satisfied that the father would have welcomed the continued involvement of the maternal grandparents into the lives of his daughters. He did this in the past, however after all of the evidence and the conduct and attitude of the maternal grandparents is considered, I am satisfied that there are now irreconcilable differences and untold hurt caused by the maternal grandparents towards the father. I accept he has reason to no longer trust the maternal grandparents.
In terms of the recommendation of the family report writer, I accept her recommendations as the future living arrangements of the children, as they accord with the evidence and my own views.
I have considered each of the proposals before the Court and I am satisfied that the proposal of the father is the arrangement which has the most advantages for the children and which promotes the children’s best interests in the long term. I am also satisfied that in living with their father, the children will have the certainty of a loving ongoing relationship with their own father for the years ahead. In circumstances where they have lost their mother, and this father is such a loving and committed parent who is adored by the children, and who has the capacity to provide for their intellectual and emotional needs, that this is an important factor.
I am satisfied that the maternal grandparents do not value the father’s role in the life of the children and that maternal grandparents do not have the capacity to or the desire to have any reconciliation with the father. I am satisfied that the father has the maturity and objectivity not to denigrate the maternal grandparents to the children and that he will ensure, that to the extent that the children’s best interests require it, they maintain an association with their maternal grandparents, but not to the extent that the children will be influenced by their exposure to the negativity towards the father held by the maternal grandparents. I accept the father’s reservations about what is likely to happen into the future and that the maternal grandparents do not like him at all. There is not even a glimmer of evidence that the maternal grandparents have reconsidered or softened their hardnosed hostile attitude towards the father. They have wrongly accused the father and his mother of child abuse and of being the cause of their daughter’s death. Their beliefs are rigid
The father’s proposals have significant advantages for the long-term interests of the children, and I consider that the father’s proposals will enable the children to achieve their full potential in life. His ability to share his cultural heritage with his children and for the children to be the beneficiaries of that love of their indigenous culture and the opportunity to continue to develop a genuine understanding of the complexities and strengths of their aboriginal culture, including their traditional language adds to the other advantages in the children living with their father. Being the recipient of his adoration and child focused parenting, and his awareness of their emotional needs, are all advantages of the father’s proposal. I accept the family report writer’s evidence that the children adore him and they have an exceptionally close bond at this stage. I adopt the submissions of Counsel for the ICL, Mr Dodd, as they accord with my own observations and the evidence. Similarly, I accept the submissions of Counsel for the father for the same reasons.
In terms of the children spending time with the maternal grandparents, Mr Selfridge of Counsel for the maternal grandparents submitted that if the Court was against their primary position that the children live with them, that the maternal grandparents sought as much time as possible with the children.
I have carefully considered the time that the children should spend with their maternal grandparents. I would be deeply concerned by the influence that the mistrust and disrespect held by the maternal grandparents towards the father would have on the children, if the children were to spend any more time with the maternal grandparents than once a month. I hold ongoing concerns going forward that the maternal grandparents will not give up their quest to have the father, one way or another, removed from the lives of the children. I consider this is a significant risk going forward and that the children’s future time with the grandparents needs to be limited given this ongoing risk. The father and the ICL have submitted that the children should spend once a month with the maternal grandparents. I will adopt the proposal of the Father and the ICL, however, the regularly occurring monthly weekend will be suspended during all school holiday time with their father and his family.
The father and the ICL have agreed that in the interests of the children, there is no necessity to have a prolonged moratorium period of 3 or 6 months wherein there is no contact with the grandparents. I consider though that the children will need some time to settle in with their father. I am acutely aware that the maternal grandparents will vehemently disagree with the decision of the Court and therefore I consider that they will need some time to digest the Judgment and come to terms with the Court’s Orders. I am very conscious that this litigation has been deeply distressing for the maternal grandparents and likewise for the father. The time the children spend with the grandparents is going to be once a month, and that monthly contact will not start until Saturday 26 April 2025.
I will make Orders for the children to be delivered up to the registry where the handover can occur in a controlled environment and without the children being exposed to high emotions.
ORDERS
I have largely adopted the draft of Orders prepared by the ICL and the father. I have included an additional order proposed by the father to prohibit the maternal grandparents from presenting the children for medical treatment unless in circumstances where there is an emergency at which time the grandparents should first obtain the father’s written permission.
Given the evidence regarding the maternal grandmother disagreeing with the father regarding medical issues, and her unilateral decision to start teaching the children her version of protective behaviours without any consultation let alone agreement from the father, and their tendency to ignore the father’s standing, I am troubled that the maternal grandparents will ignore the Orders for the father to make sole decisions about the children’s medical matters and education. These Orders will not provide for the maternal grandparents to have any ability to make long term decisions of any kind for the children. Pursuant to Section 61DAB, the only decisions the maternal grandparents may make are to do with the day to day arrangements of the children whilst they are in their care, as in what clothes they wear, what they eat and similar decisions. It is not for the maternal grandparents to take the children to doctors, counsellors or any other professionals whilst the children are in their care. If a child becomes unwell, the maternal grandparents must tell the father and obtain his permission in writing to take the children to a doctor. The maternal grandmother is not authorised to make decisions that the children will be taught protective behaviour by her or anyone else, whilst they are spending time with the children.
I therefore agree with the proposal that the Orders should specifically restrict the maternal grandparents from presenting the children for any medical or mental health assessment or treatment without the prior written consent of the father. In the event of a genuine medical emergency involving the children whilst they are in the care of the maternal grandparents, each of them is to ensure that the father is notified immediately and that they advise any medical practitioner forthwith (without any delay) that the father has the sole responsibility for making all of the children’s medical decisions and that he must be contacted. The grandparents must also advise the father of the emergency without any delay of the impending emergency.
It is not intended that the children spend Father’s Day weekends with the grandparents and should the grandparents time fall on a Father’s Day weekend the children will remain with their father and spend another weekend the maternal grandparents. If there is no agreement about which weekend it will be, it will be as nominated solely at the discretion of the father.
It was agreed during submissions for changeovers to occur at Venue OO in Town QQ and for the special days at Christmas. The parties agreed that it was more child focused not to have the children doing changeovers on Christmas Day and I have adopting the submissions in relation to those times. I am not inclined to make any orders about the parties denigrating the other parties as they each know the damage that this would cause to the children if they heard such denigration but moreover, I consider that such orders would likely lead to further litigation by alleged breaches of the order. Looking to the future and noting these are final Orders, I will make an Order that the changeovers occur at Venue OO in Town QQ, however, in the event that the father relocates, the new handover location will be as agreed and failing agreement, as nominated and determined solely by the father. The father has always been co-operative and he will be the parent with whom the children are primarily living with. I know he will make a decision based on the best interests of the children.
The children will spend Christmas days between the father and the maternal grandparents alternating year to year commencing at 10.00am on Christmas Eve to 10.00am Boxing Day in the first year with one party and then from 10.00am on Christmas Eve to 10.00am on Boxing Day in the following year with the other party.[129] The children will live with the father at all times, other than when they spend time with the maternal grandparents.
[129] Transcript of proceedings (11 September 2024) p628.
I am satisfied that the Orders proposed by the Court are in the best interests of these very young children who have had such an unfortunate start in life. It is time for this litigation to cease. This is the second time the maternal grandparents have attempted to have the children live with them. This is the second time that the death of the mother and those circumstances surrounding her death, the mental health of the father and his exposure to domestic violence have been litigated by the maternal grandparents. I am concerned that their focus on the father has become very unhealthy and intrusive.
For the sake of completeness, having heard all of the evidence about the father’s mental health history and making a determination that the father does not represent an unacceptable risk to the children, it follows that I do not intend to make any Orders (sought only by the maternal grandparents in their application) regarding the father’s future mental health or the father having to account to the maternal grandparents in relation to his ongoing mental health. The evidence overwhelmingly supported the fact that the father is acutely aware of his frailties which may occur from time to time, and he always obtains the appropriate mental health support necessary. Positive comments and opinions were expressed in the material before the Court from those upon whom he has attended regularly and the single expert, that the father is co-operative and candid and willing to undertake any professional help when he needs it. I have said that the maternal grandparents have developed an unhealthy preoccupation with the father, his mental health and his life, and it is time for the maternal grandparents to accept the evidence in this regard. Regrettably there has been no indication by them at the trial that they are able to do so.
This has been a lengthy trial, with voluminous material and subpoena material and expert evidence. It is the Court’s view that any further litigation initiated by the maternal grandparents will be detrimental and contrary to the best interests of these young children. It is time for the maternal grandparents to refocus and enjoy their grandchildren and support the father in his future parenting of his children.
Prior to my delivering this judgment an application to reopen the evidence was filed by the maternal grandparents on 10 February 2025. This Application was first mentioned on 5 March 2025 when orders were made for the filing of response material and written submissions. For the oral reasons given at the hearing of this matter on 31 March 2025, I determined that leave should not be granted to reopen these proceedings to admit further evidence as sought by the maternal grandparents.
I certify that the preceding three hundred and forty-two (342) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis AM. Associate:
Dated: 3 April 2025
(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii) to develop a positive appreciation of that culture; and
(b) the likely impact any proposed parenting order under this Part will have on that right.
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