Najm & Najm (No 3) - [2022] FedCFamC1F 740

Federal Circuit and Family Court of AustraLIA
(DIVISION 1)
Najm & Najm (No 3) [2022] FedCFamC1F 740

File number(s): SYC 6820 of 2017

Judgment of: CAMPTON J

Date of judgment: 28 September 2022

Catchwords: FAMILY LAW – CHILDREN – Where the mother and father were convicted of criminal offences relating to the consumption and distribution of a prohibited substance and subsequently gaoled – Where the children reside with the paternal grandfather – Where the paternal grandfather seeks sole parental responsibility for the children – Where the mother proposes graduating time until the children are returned to her care and that she have sole parental responsibility for the children – Father does not apply for parenting orders but supports the paternal grandfather’s application –Where the mother had a history of drug abuse but is now rehabilitated – Where the children have demonstrated challenging behaviour and are struggling at school – Where the mother is adept in responding to the children’s needs and has the capacity to address their behavioural and academic challenges – Where the paternal grandfather and the mother have no capacity to communicate with one another – Where the mother has spent regular and increasing time with the children for the past two years – Orders for the children to live with the mother and to spend time with the paternal grandfather following a period of suspension in that time.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAA

Cases cited:
Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196

B & B (1993) FLC 92-357; [2014] FamCAFC

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Briginshaw v Briginshaw (1938) CLR 336; [1938] HCA 34

Burton & Churchin (2013) FLC 93-561; [2013] FamCAFC 180

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15

G & C [2006] FamCA 994

Hall & Hall (2016) FLC 93-709; [2016] HCA 23

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69; [1988] HCA 68

Mazorski & Albright (2007) Fam LR 518; [2008] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Najm & Najm [2022] FedCFamC1F 87

Najm & Najm (No 2) [2022] FedCFamC1F 122

Division: Division 1 First Instance

Number of paragraphs: 293

Date of hearing: 21 – 24 February; 12 – 16 September 2022

Place: Sydney

Counsel for the Applicant: Mr Wong

Solicitor for the Applicant: East Sydney Law Pty Ltd

The Respondent: Litigant in person (did not participate)

Counsel for the Respondent: Mr Eardley

Solicitor for the Second Respondent: Emanuel Refenes Solicitor

Counsel for the Independent Children's Lawyer: Ms McConaghy

Solicitor for the Independent Children's Lawyer: Ark Law Lawyers
ORDERS

SYC 6820 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR NAJM

Applicant

AND:
MR B NAJM

First Respondent

MS FARHAN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAMPTON J

DATE OF ORDER:

28 September 2022

The court orders that:
1.That all prior parenting orders in relation to X born in 2010 (“X”) and Y born in 2010 (“Y”), (“the children”), be discharged.

Parental responsibility
2.The mother have sole parental responsibility for the children.

Living arrangements
3.The children shall live with the mother.

Time with the paternal grandfather
4.The children shall spend time with the paternal grandfather as agreed between the mother and the paternal grandfather in writing, but failing agreement as follows:
(a)For a period of one week, from 9.00 am on 9 January 2023 to 5.00 pm on 16 January 2023;
(b)For a period of one week, from 9.00 am on 11 April 2023 to 5.00 pm on 18 April 2023;
(c)During the school Term:
(i)Commencing on the first weekend of Term 2, 2023, on Sunday from 9.00 am until 5.00 pm and on each alternate Sunday thereafter;
(ii)Commencing on the first weekend of Term 3, 2023, from 9.00 am on Saturday until 5.00 pm on Sunday and on each alternate weekend thereafter, provided that the paternal grandfather takes the children to any scheduled co-curricular or school activity, and if he does not take the children to the said scheduled activity, then his time with the children will commence at the conclusion of the activity (if it occurs on Saturday) or conclude prior to the activity (if it occurs on Sunday); and
(iii)For the purposes of Order 4(c)(ii), for each subsequent school term from Term 4, 2023, the paternal grandfather’s time is to commence on the first weekend of each school term.

(d)During the school holidays:
(i)Commencing from the school holiday period after the completion of Term 2 2023, during each school holiday period following Terms 1, 2, and 3, for a period of one week from 9.00 am on the first Saturday of the holiday until 9.00 am on the following Saturday;
(ii)From Term 4 2023, during each summer school holiday period following the conclusion of Term 4, for a period of two weeks from 9.00 am on 6 January to 5.00 pm on 20 January 2024 and each year thereafter.

5.For the purposes of the paternal grandfather’s time, and unless otherwise agreed between the mother and the paternal grandfather in writing, the paternal grandfather shall personally:
(a)Collect the children from the mother at McDonald’s, Suburb L at the commencement of his time; and
(b)Deliver the children to the mother at McDonald's Suburb L at the conclusion of his time.

Reset orders
6.In the event that the children are come into the care of the paternal grandfather, other than in accordance with Order 4 herein:
(a)The paternal grandfather is to notify the mother by text message as to the location of the children as soon as is reasonably practicable; and
(b)Within four hours of them coming into his care, the paternal grandfather shall ensure the children are returned to the care of the mother, unless otherwise agreed by the mother and the paternal grandfather in writing.

7.In the event the paternal grandfather fails to comply with Order 6 herein, the mother be granted leave to apply for a Recovery Order to be made on an urgent basis, in chambers, by approaching my chambers by email to, copying in the paternal grandfather and the Independent Children’s Lawyer, and attaching the following:
(a)An Application in a Proceeding setting out with particularity the orders she seeks; and
(b)An affidavit of the mother setting out her evidence as to the alleged non-compliance with Order 6 herein.

8.In the event the children abscond to the paternal grandfather and do not return to their mother’s care within four hours or as agreed pursuant to Order 6 herein, then the paternal grandfather’s time with the children shall be suspended for a period of three months, and thereafter the children will commence spending time with the paternal grandfather as follows:
(a)For a period of three months (but not during school holiday periods), from 9.00 am until 5.00 pm on each alternate Sundays; and
(b)Thereafter, for a further period of three months (but not during school holidays periods, from 9.00 am on Saturday until 5.00 pm on Sunday and on each alternate weekend thereafter, provided that the paternal grandfather takes the children to any scheduled co-curricular or school activity, and if he does not take the children to the said scheduled activity, then his time with the children will commence at the conclusion of the activity (if it occurs on Saturday) or conclude prior to the activity (if it occurs on Sunday);
(c)Thereafter, in the terms identified in Order 4 hereof.

Restraints
9.The mother be restrained from doing any act or thing, to cause or permit the children to come into contact with her brother, Mr O, save and except for when the mother is present.
10.The paternal grandfather be restrained from doing any act or thing to cause or permit the children to come into contact with the father, Mr B Najm, save and except when the paternal grandfather is present.
11.The paternal grandfather be restrained from tracking the location of the children when the children are in the care of the Mother, including by way of any electronic device or program.
12.The mother and paternal grandfather are restrained from:
(a)Denigrating the other party or any member of the other party’s family in the presence or hearing of the child, including by social media, and shall use their best endeavours to ensure that no third party denigrates the other party or any member of the other party’s family in the presence or hearing of the child, including through social media;
(b)Discussing these proceedings with, in the presence of, or within hearing of, the children, and allowing the children to remain in the presence of, or within hearing of, any third party engaging in such behaviour;
(c)Questioning the children in relation to their views or preferences concerning their living arrangements or the time they spend with the other party;
(d)Encouraging the children to express particular views or preferences in relation to their living arrangements or the time they spend with the other party.

Additional
13.That within 48 hours from the date of these orders the Independent Children’s Lawyer shall explain these Orders to the children in person.
14.A copy of these orders and reasons may be provided by the mother to:
(a)Any school that the children or either of them may attend;
(b)Any treating practitioner (psychiatrist, psychologist, counsellor, therapist, clinical social worker) consulted by either the paternal grandfather or the mother, or either child, and such treating practitioner may also be provided with a copy of the single expert report of Dr P.

15.Within 14 days from the date of these orders the mother shall do all things necessary to enable the children to receive therapeutic and other supports from a children’s behavioural therapy service such as the T Clinic at U University, V Health Service, or a child and adolescent mental health unit for such period of time that is recommended by the treating therapist or medical practitioner.
16.In the event the service identified in Order 15 above is not available, then the mother shall do all things as are necessary for the children to receive therapeutic and other supports from such medical practitioner or therapist as directed by the Independent Children’s Lawyer on recommendation from Dr P, for such period of time that is recommended by the treating therapist or medical practitioner.
17.Within 14 days of the date of these orders the mother is to engage with such therapist as directed by the Independent Children’s Lawyer who shall obtain a recommendation as to the identity of the therapist from Dr P and shall continue to attend upon that therapist for such period of time that is recommended by the therapist for the purposes of assisting the mother in her parenting of the children.
18.For the purpose of Order 17, the mother to provide the therapist with a copy of the report of Dr P, these orders and reasons.
19.Each of the mother and paternal grandfather shall keep the other informed of their email address and telephone numbers and will provide the other with written notice of any change within 24 hours of such change.
20.The paternal grandfather is hereby authorised to obtain from the children’s school all notices including but not limited to functions and school events, newsletters, correspondence and school reports concerning the children, the school or such other activities or events to which parents are invited.

Independent Children’s Lawyer
21.The oral application of the Independent Children’s Lawyer for costs be dismissed.
22.The Independent Children’s Lawyer continue to be engaged for a period of two months after the date of 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Najm & Najm has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Introduction

These are proceedings as to the parenting of two children, X, born in 2010 (“X”), who is currently 12 years of age, and Y, born in 2010 (“Y”), who is 11 years of age (collectively, “the children”).
The parents of X and Y are Ms Farhan (“the mother”) and Mr B Najm (“the father”). The parents met in 2008, were engaged in 2008 and married in 2009. They were at that time living in Suburb AA where the father worked.
In around 2013 each of the parents began using alcohol and illicit drugs regularly.
In March 2014 the parents separated. Immediately after separation, the children began living with the father during the week. They spent time with the mother on weekends.
On 19 June 2014, consent orders were made between the mother and father as to the parenting of the children (“the 2014 orders”). The orders provided for the parents to have equal shared parental responsibility of the children and for the children to live with the father during the week and with the mother on the weekends.
Notwithstanding the 2014 orders, at some point in mid-2014 the parents reconciled. Around this time the father began consuming a prohibited substances (“ice”). The mother conceded that she began consuming that drug shortly thereafter. The relationship between the mother and the maternal family broke down around this time.
In late 2014, at a time when the parents were regularly consuming ice, Mr Najm (“the paternal grandfather”) and his wife, the paternal grandmother, stepped in to care for the children. The parents’ situation devolved such that by 2015 the parents had no fixed address. For a short period of time they lived in their car, and separately in a commercial premises in Suburb Q.
In 2015 the children were the subject of a number of child protection notifications made to the state child welfare authorities by various mandatory reporters concerned that the children were being exposed to drug culture, neglect, and family violence. In 2014 and 2015 the children drifted between the care of their parents and the paternal grandparents. By at least mid-2016 they lived full-time with the paternal grandfather. He became their sole caregiver, having separated from his wife (the paternal grandmother) in 2015.
It is uncontroversial that, for the benefit of the children, the paternal grandfather suspended his life to rescue them from what was, on any view, dire and serious circumstances of risk. He prioritised the children over his own wellbeing. The mother acknowledges this without reservation.
From 2014 until 2017 the parents were “regular and heavy” users of drugs and alcohol. Police records report the mother accepting that they both smoked ice “on almost a daily basis”.
Both the parents were arrested and charged with the possession and supply of a prohibited substances. They were each convicted of these offences and in 2017 were imprisoned.
Shortly after the parents’ incarceration, the paternal grandfather on 17 October 2017 filed an Initiating Application seeking orders for the sole parental responsibility of the children and for the children to live with him.
Justice Watts on 25 October 2017 (when each parent was in incarcerated) suspended the 2014 orders and ordered that the children live with the paternal grandfather. He made no further order allocating parental responsibility for the children. The effect of that suspension is that the legal position by way of s 61C of the Family Law Act 1975 (Cth) (“the Act”) for each parent to have parental responsibility was no longer displaced by a parenting order made by the Court. Hence, since 25 October 2017, each of the mother and the father had capacity to exercise parental responsibility for the children, either independently or jointly. This circumstance has existed for nearly five years.
On 15 December 2017, Ms W (“the maternal grandmother”) filed an Application in a Case seeking leave to intervene in the proceedings and orders as to her spending time with the children.
The mother was released from gaol in 2018. It was the mother’s evidence that she continued to use a prohibited substances for a short period of time while imprisoned, but that in late 2017 she stopped using that drug all together and that she has not consumed any drugs or alcohol since late 2017.
Upon her release from gaol the mother sought to reinstate spending time with the children. The paternal grandfather initially permitted her to see them for visits, taking place under his supervision on the street outside his home. The mother filed an Amended Response to an Initiating Application on 18 May 2018 seeking to increase that time spent.
That mother’s interim application for time was listed to be heard by a senior registrar of the Federal Circuit Court on 15 June 2018. On that day consent orders were made between the grandfather and the mother providing for the children to spend time with the mother for two hours each fortnight at the R Contact Centre (“R Contact Centre”). Additionally, the maternal grandmother’s Application in a Case filed on 15 December 2017 (amended on 16 March 2018) was dismissed.
On 17 December 2019, further interim orders were made on a defended basis by a Senior Registrar providing for the mother’s time with the children to develop such that the children spent unsupervised time with the mother each alternate Sunday from 10.00 am until 12.00 pm and each alternate Friday from 3.00 pm until 5.00 pm.
After the orders made on 15 June 2018, the paternal grandfather has not over the course of these proceedings provided the children the opportunity to spend additional time with the mother, save and except as provided for in the Court orders. That said, he has at all times ensured that the children did spend time with the mother in compliance with the orders.
The proceedings came before me for final hearing for four days commencing on 21 February 2022. The hearing did not conclude within the allocated timeframe and was adjourned part-heard for further hearing over four commencing 12 September 2022. On 11 March 2022, on application of the mother, I made further interim parenting orders for the children to apply during the period of the adjournment. Those orders provided, for reasons then delivered, for the children to live with the paternal grandfather and spend time with the mother from the date of the orders until 6 June 2022 on Saturday and Sunday for an eight hour period each day (but not overnight), and from 6 June 2022, from after school on Friday to before school on Monday for the first two of each three weeks.
These reasons assume familiarity with the reasons for my interim decision dated 11 March 2022, Najm & Najm (No 2) [2022] FedCFamC1F 122 (“the interim reasons”).
For the reasons that follow, orders will be made so that the mother will have sole parental responsibility for the children and for the children to live with the mother. The children’s time with the paternal grandfather shall be suspended for a period of three months. Thereafter, the children’s time with the paternal grandfather will increase gradually, such that by Term 3, 2022, they will spend each alternate weekends and substantial time during the school holidays with him. Other orders will be made of an injunctive nature, mitigating the exposure of the children to risk by coming into contact with the father and the mother’s brother without the mother or the paternal grandfather being present.
Evidence

The paternal grandfather relied on the following material for the purpose of the trial:
·Initiating Application filed on 17 October 2017;
·Notice of Risk filed 17 October 2017;
·His affidavit filed 16 April 2021;
·His affidavit filed 23 December 2021;
·His affidavit filed 22 February 2022;
·Affidavit of Ms H filed 16 April 2021;
·Affidavit of Mr B Najm filed 31 October 2021;
·Affidavit of Mr M filed 23 December 2021;
·His affidavit sworn and filed on 2 September 2022;
·His affidavit sworn and filed on 9 September 2022;
·A proposed Minute of Order dated 12 September 2022, marked Exhibit GF3.
In addition to the above, the paternal grandfather filed and served by did not read an affidavit on Mr N filed on 16 February 2021. It was not controversial that Mr N was a private investigator engaged by the paternal grandfather’s solicitors to conduct surveillance on the mother, and that his affidavit, although not read, exhibited his surveillance reports. The letter of instruction sent by the solicitors on behalf of the paternal grandfather became Exhibit ICL6.
The paternal grandfather initially sought to rely on the sworn and served affidavit of Mr C, a NAATI qualified translator, filed on 11 December 2019. Mr C’s affidavit annexed a report translating a conversation that was alleged to have occurred between the paternal grandfather and the mother over the telephone in 2014. That report was objected to and struck out for the ex tempore reasons delivered on the first day of trial. These reasons for judgment assume familiarity with that judgment as published, being Najm & Najm [2022] FedCFamC1F 87. After this determination, the paternal grandfather no longer sought to rely on Mr C.
Mr M was not required by counsel for the mother or the Independent Children’s Lawyer for cross-examination.
The mother relied on the following material for the purpose of the trial:
·Amended Application in a Case (which should be read as a Response to an Initiating Application), filed on 30 June 2019
·Notice of Risk, filed on 7 June 2019
·Her affidavit filed 16 February 2022
·Her affidavit filed 17 February 2022
·Affidavit of Mr D filed 18 February 2022
·Her affidavit sworn and filed on 6 September 2022
·A Minute of Order dated 15 September 2022 and marked Exhibit M15.
The Independent Children’s Lawyer relied on the following material for the purpose of the trial:
·A tender bundle filed 14 February 2022 and marked Exhibit ICL-2;
·Two supplementary bundles of documents, the first being material produced on subpoena by BB School which was marked Exhibit ICL-4 and the second being material produced on subpoena by CC School which was marked Exhibit ICL-5;
·A Minute of Order Sought dated 14 September 2022 and marked Exhibit ICL-3.
The single parenting expert Dr P prepared an expert report for the purposes of the proceedings dated 29 July 2020. That document is Court Exhibit X1. Dr P attended upon the parties and the children on 12 May 2020, more than two years ago. It was agreed by the parties at the conclusion of the first tranche of the final hearing before me in February 2022 that a Dr P would be engaged to prepare an updated report. That did not eventuate. He was provided with all of the updated evidence relied upon by the parties, and gave oral evidence in the second half of the trial in September 2022.
The father
The father has not engaged as party to the proceedings since 2019. He has not filed any Response to the paternal grandfather’s Initiating Application, or to the final relief agitated by the mother. His solicitors filed a notice of ceasing to act on 6 May 2020. The father did not attend Court for the final hearing save to give evidence as a witness in the paternal grandfather’s case on the second-last day of the trial. During the course of cross-examination the father confirmed that he was not seeking any orders in respect of the children but that he supported his father’s application. Hence the matter proceeded on an undefended basis against the father.
The father said that he had not read the report of Dr P and that he could not recall what he spoke to Dr P about in May 2020. He confirmed he had read “some” of the mother’s affidavits filed in these proceedings but could not recall details as to which those were or their contents.
During his oral evidence, the father minimised the impact that his own neglect has had on the children, redirecting his answers to instead criticise the mother and her family. For example, although he accepted that his criminal history is extensive he said that he “had never been raped by [his] dad”. The father’s clear evidence was that drugs were not the cause of his concern about the mother’s capacity, but rather it was the “psychological” issues that she faced by reason of the abuse by her family.
Although he accepted that the mother has made progress in her own life and stepped up to care for the children, his attitude towards her is entrenched. He said that he could not say anything either positive or negative about the mother, but that he would respect her because she is the mother to his children. That statement does the father little credit, and I find that it is reflective of his general view of the mother.
As recorded later in these reasons, a volume of objective evidence tendered by the Independent Children’s Lawyer records extensive family violence occasioned by the father towards the mother, and X being aware of threats of violence made by his father towards the paternal grandfather.
The father presented as wholly disinterested in his role as a parent in the children’s lives. It was his evidence that he “hardly” sees or speaks to the children, and spends time with them at most once or twice a month. He has not spent time with the children unsupervised since being released from prison in 2019. He was not aware of their behavioural or academic challenges at school. He said this was not something he spoke with his father (the paternal grandfather) about.
The father’s extensive criminal record was tendered by the Independent Children’s Lawyer and became Exhibit ICL-2. It records the father’s history with illicit drug use and supply commencing in around 2015. Notes produced on subpoena by the police after the father’s release from prison are indicative of the father continuing to be involved in a drug-related environment, including the police stopping and checking a vehicle in which he was a passenger for drugs and drug paraphernalia, and he securing the close attention of police authorities. In cross-examination the father accepted that in early 2022 he was charged with driving under the influence of a prohibited substance, but that he intended defend the charge through the Court process.
The father accepted that since being released from prison he had not taken any steps to rehabilitate himself, save for “running [his] three companies”, notwithstanding that attending rehabilitation courses was a condition from his release. He said that he had not undergone a drug test since his release from prison. It was his evidence that he has used substances “for athletics” on an ongoing basis but that his use does not affect his behaviour.
During his oral evidence, Dr P was asked to opine on the risk posed to the children should the father’s drug use continued. He said emphatically that prohibited substances and other drugs make for “a really explosive mix”, explaining that:
…both [prohibited substances and other drugs] in and of themselves are hideous in terms of what it does to a person’s psychological profile and capacity to self-regulate emotions effectively. …a prohibited substance is such a disinhibiting substance… it’s such an insidious product that people relapse to so often…. Combined, though, with [other drugs, drugs that] by definition are increasing testosterone. Testosterone by definition promotes aggression and anger. And so then we have a disinhibited – or disinhibiting reward centre explosion substance combined with a testosterone fuelling anger substance. It just makes for a really, really angry person potentially less capable of emotional self-regulation than previously… So potential for just completely being out of control is more likely than not. So the risk factors to the children in the absence of any evidence about abstinence, again, the risk factors are significant, and all I would do is urge the court to be most cautious.
I accept and find consistent with Dr P’s evidence that there is a need for the Court to tread cautiously in circumstances of the father’s current, continued drug use. It was not suggested that he is lawfully self-administering drugs. I will return to this issue later in my reasons.
The competing cases
Paternal grandfather’s case
At the commencement of the trial in February 2020, the paternal grandfather contended that the children remained at risk in the mother’s care by way of:
(a)her history of drug and alcohol misuse coupled with a history of anti-social behaviour;
(b)she having historically little if any capacity to provide to the children with the basic necessities of housing and food; and
(c)she being unable to protect the children physically or emotionally; and
(d)the mother being untested as a substantial carer of the children; and
(e)her immediate family having occasioned significant and serious family violence upon her, including sexual assaults by her father, uncle and brother.
He squarely put into issue the mother’s alleged abstinence from illicit drugs since late 2017. By the conclusion of the trial he accepted that the mother had demonstrated her abstinence from illicit drugs and that her exposure to that environment no longer presented a risk to the children. The extent of his case as to risk diminished, as recorded later in these reasons.
The paternal grandfather sought orders in the accordance with a Minute of Order dated 12 September 2022 and marked Exhibit 3. Broadly he sought:
(a)That the children live with him and that he have sole parental responsibility for the children;
(b)That the children spend time with the mother on each alternate weekend from Friday after school until before school on Monday, and that such time be suspended on the middle weekend of the school holidays. He did not propose that the children would spend any block of time during the school holidays with the mother. During the course of submissions, the paternal grandfather said that irrespective of who the children live with as between he and the mother, they should spend time with the other in the terms identified in the Independent Children’s Lawyer’s Minute of Order;
(c)That the mother be restrained from permitting the children from coming into contact with her father, Mr D (“the maternal grandfather”) or her brother, Mr O.
(d)A number of other injunctive orders as to communication between he and the mother and obtaining information from the children’s schools.
The Independent Children’s Lawyer’s case
The Independent Children’s Lawyer’s final proposal was contained within a Minute of Order produced on the last day of trial and marked Exhibit ICL-7. In summary, it provided for the children to live with the mother and for her to have sole parental responsibility for the children. By way of adjunct, there was a regime of orders proposed whereby the mother would notify the paternal grandfather of decisions as to any major long-term issues relating to the children, to provide him with relevant information, and to consider any response by him before making any such decision. In respect of time to be spent with the paternal grandfather, she sought:
(a)That for a period of sixteen weeks the children spend no time with the paternal grandfather, and that thereafter they spend time with him as agreed between the mother and paternal grandfather in writing or, failing agreement, as follows:
(i)For a period of three months, from 10.00 am to 1.00 pm on each alternate Sunday;
(ii)Thereafter for a period of nine months, from 10.00 am to 6.00 pm on each alternate Sunday; and
(iii)Thereafter, each alternate weekend from 4.00 pm on Saturday until 12.00 pm on Sunday;
(b)At the time the alternate weekend time-spent arrangement commenced, school holiday time would also commence, being for one week in the short end-of-term holidays during the year, and two weeks over the Christmas holidays commencing in December 2023.
(c)A mechanism to be in place in the event the children “abscond from the care of the mother to the paternal grandfather’s residence or any member of the paternal grandfather”, which included a “reset” clause such that if the children did abscond, their time with the paternal grandfather would reduce to time only on each alternate Sunday from 10.00 am to 1.00 pm for a period of six months, and then increase in accordance with paragraphs (a)(ii) and (iii) above.
(d)A series of injunctive orders, including restraining the paternal grandfather from locating the children by way of any technical device when the children were in the care of the mother, as to the exchange of information and communication, restraining the paternal grandfather from allowing the children to be in the presence of the father without he also being present.
(e)A series of further orders to ensure the mother attended upon T Clinic at U University, V Health Service and the mother to engage with a therapist as recommended, and the Independent Children’s Lawyer identified Mr DD as the preferred person.
During submissions, the Independent Children’s Lawyer provided support for an order that the mother be restrained from allowing the children to be in the presence of her brother, Mr O, without the mother being present.
The mother’s case
At the commencement of the trial the mother sought that the children live with her and that she have sole parental responsibility for them, and that they spend time with the paternal grandfather “as agreed”. She did not prescribe any specific arrangement for that time to occur.
By the conclusion of the trial, the mother sought orders as recorded in her Minute of Order dated 15 September 2022, which became Exhibit M5. She made minor amendments to that Minute during the course of submissions. Broadly, she sought:
(a)That she had sole parental responsibility for the children, but that she engage in a process of consultation with the paternal grandfather as to any major long-term decisions for the children (save for in the event of an emergency);
(b)That the children live with her;
(c)That for a period of six months the children spend no time with the paternal grandfather, and that thereafter they spend time with him as agreed between the mother and paternal grandfather in writing or, failing agreement, as proposed by the Independent Children’s Lawyers;
(i)For a period of three months, from 10.00 an to 1.00 pm on each alternate Sunday;
(ii)Thereafter for a period of nine months, from 10.00 am to 6.00 pm on each alternate Sunday; and
(iii)Thereafter, each alternate weekend from 4.00 pm on Saturday until 12.00 pm on Sunday;
The mother otherwise broadly supported the orders proposed by the Independent Children’s Lawyer, subject to minor amendments. She sought a “reset” order in similar terms to that identified by the Independent Children’s Lawyer, but proposed that in the event the children abscond to the paternal grandfather, their time with him be suspended for a further period of six months before progressing in the same arrangement as sought by the Independent Children’s Lawyer. She supported the restraints proposed by the Independent Children’s Lawyer on the paternal grandfather tracking the children by use of a device while they were in her care, and as to the paternal grandfather not allowing the children to spend time with the father otherwise than in his presence, as well as the restraint on her to ensure the children do not come into her brother’s care in her absence.
Agreed issues
There were some items that were agreed upon by the mother and paternal grandfather by the conclusion of the trial, including that:
(a)All previous parenting orders as to the children should be discharged;
(b)That whichever party the children live with or primarily live with should have sole parental responsibility for them; and
(c)That each of the mother and the paternal grandfather should be restrained from allowing the children to come into contact with the father save and except if the paternal grandfather is present.
Background
The paternal grandfather was born in 1943 and is aged 78. He obtained tertiary qualifications in the USA. He retired from employment prior to the children coming into his care.
The paternal grandfather said he is good health save for experiencing high blood pressure. He receives income by way of a Centrelink pension, supplemented by financial support from his adult children.
The mother left high school in Year 10 and commenced working in a business owned by her parents. That she did not complete secondary school was a source of significant complaint by the paternal grandfather.
The mother now works in a permanent, full-time position for “EE Program” which she said is a therapeutic program assisting women who have previously experienced drug and alcohol dependence. Her hours are from 8.00 am to 4.00 pm on Monday to Friday and her work is based in Suburb FF. She gave evidence of having some flexibility with her work-arrangements in terms of the leave she is able to take. She earns an income from that employment of between $1,650 net and $2,000 net per week (being in the range of $86,000 and $105,000 annually).
Reports to the Department of Family and Community Services
It is uncontroversial that the children were subject to a number of notifications as to risk investigated by the Department of Family and Community Services (as it was then) from late 2015. The children were identified as being at risk arising from family violence as between the parents and their exposure to violence, being significantly neglected by the parents and being exposed to the parents’ drug consumption and lifestyle.
Evidence of some of those reports were included in ICL-3, being the Independent Children’s Lawyer’s tender bundle. The initial report made to the Department in October 2015, potentially from a staff member at the children’s school, records:
[Y] (4) regularly presents to pre-school smelling strongly of cigarette smoke and urine. His hair is very long and matted. [Y] rarely has a bag or change of clothes. Staff have provided changes of clothes fur him previously,
Excessive discipline was also considered as [Y] presented to school this morning with red marks
An assessment completed by the Department in February 2016, which followed a meeting between the assessor and the children’s teacher, recorded that in early 2016, X reported he and Y had been living out of an office space with the father. That housing was deemed “physically unsafe” and unhygienic.
Dr P opined and I accept on both parties’ evidence that the children’s experience in living with their parents was a home environment of substance abuse and family violence was chaotic, disorganised and distressing.
Transition to the paternal grandfather’s care
The evidence as to the children’s care between 2014 and mid-2016 is unclear. Reports produced by the Department record that the children were living predominately with their father by the end of 2015 and into early 2016, but that during that period, the paternal grandfather did “most of the caring for the children”, including cleaning, clothing and feeding them, and facilitating their attendance at school.

By 26 April 2016 the reports make clear that the children had commenced living with their paternal grandfather full-time. At this time the paternal grandfather lived in a one-bedroom unit. Upon assuming care for the children, the paternal grandfather ensured that they were fed, clothed and attended school.
After the children commenced living with the paternal grandfather and before the parents’ incarceration, the paternal grandfather facilitated the children spending time with the parents by taking them to visit at the apartment in which the parents were then living on the weekends. He said that he would leave the children in their parents’ care during the day but not at night.
Case notes produced on subpoena by the Department of Communities and Justice record the details of an interview between the paternal grandfather and family support staff on 21 March 2017, and provide insight into the extent of the paternal grandfather’s sacrifice during this period. He is recorded as having explained to the staff that his apartment was too small to accommodate himself and the two children but that he was making-do by having X share his bed, and using a trundle pull-out bed for Y. He said that he was borrowing money from friends to financially support the children, in circumstances where his Centrelink pension was insufficient to do so. He described a routine for that he had implemented for the children, including buying the children lunch orders at school and making sure that they were in bed by 8.00 pm.
Notwithstanding that the paternal grandfather was able to provide the children a stable, safe home environment in which their basic needs were met, the family continued to be the subject of attention from Family & Community Services, who received a number of reports concerned for the children’s welfare. One such report was made in mid-2017, seemingly by a staff member at the children’s primary school who relayed that X “has previously witnessed his father punch his mother in the face”. The contents of that report was not put into contest by the paternal grandfather and was denied by the father in cross-examination. A further report made in late 2017 expressed concern about the children’s “sexualised behaviours” towards female students at school.
The mother’s rehabilitation process
The mother underwent a detox program while incarcerated. Upon her release she enrolled in and, in 2018, successfully completed a drug rehabilitation program run by the WW Organisation in Suburb GG. As part of that program she underwent a regime of drug and alcohol testing, and between mid-2019 and early 2022 she was subject to 18 urinalysis tests, each of which returned negative results for all screened drugs and were disclosed to the paternal grandfather and the ICL. She also received the benefit of various counselling groups, including ‘HH Counselling Services’ every Monday and Tuesday night.
The mother received a tertiary qualification in late 2019. In early 2020 she gained employment with an organisation, JJ Organisation on a casual basis, working three days per week. Her role, as described by the mother to Dr P, was to “facilitate therapy groups for individuals recovering from drug and alcohol issues”.
The mother gave oral evidence of having completed various parenting courses since her release from gaol, including ‘Triple P Parenting’ while she was in rehabilitation, ‘Tuning in to Kids’ in November 2018, ‘Parents and Family Anger Management’ in November and December 2018, ‘Turning to Teens’ after receiving the Family Report from Dr P in July 2020, and ‘Circle of Security’ in early 2021. She was cross-examined on what she had learned from the courses. Her oral evidence on this subject matter was impressive. She was able to recall details of the courses and explain the things that she had learnt from her engagement with the courses. For example, as to the ‘Turning to Teens’ course, she said in cross-examination that she had learnt about “having a structure for teens and allowing them to have a voice, but putting feeling behind it and getting them to understand what their emotion is and what they feel”. She described the courses as a “professional outlet” that assisted her to navigate her apology to the children for the impact of her historical drug use. I accept the mother’s evidence on this topic. It was not materially disputed by the paternal grandfather in the course of the hearing or in his affidavit evidence.
I find consistent with Dr P’s opinion that the mother has applied what she has learnt in her parenting courses and during her rehabilitation processes to meet and effectively deal with the challenging behaviours of the children during time spent.
The mother said she had engaged a senior clinical psychologist at the recommendation of Dr P. She said she saw the psychologist for the first time in early 2021 and had a number of sessions with that psychologist. She no longer attends upon that therapist regularly.
Supervised time
The first period of supervised time between the children and the mother at R Contact Centre was in mid-2018.
The Independent Children’s Lawyer’s tender bundle being Exhibit ICL-3 contained the mother and paternal grandfather’s intake documents, and reports prepared by supervisors in mid-2019.
A reading of those reports reveal the children to be conflicted between their affection for their mother and their loyalty towards the paternal grandfather. For the most part, the time between the mother and the children proceeded well albeit that the children displayed significant behavioural challenges. The reports record an intimacy between them, for example, by way of the children giving the mother “hugs and cuddles” and she telling them that she “loved them very much”.
As recorded in my earlier reasons, the mother was well-prepared for each period of supervised time she spent with the children. She brought meals for the children and appropriate games for them to play. She was adept in dealing with their challenging behaviour, including by responding to their critical comments towards her.
Increase in time subsequent to 2019 orders
Following the orders made by a Senior Judicial Registrar on 17 December 2019, the children commenced spending unsupervised time with their mother on each alternate Sunday morning for two hours, and Friday afternoon for two hours.
As recorded in the interim reasons at [97] and [110], the mother accepted that since her unsupervised time with the children commenced there have been occasions where X has challenged her and said rude things to her.
Communication between the mother and the paternal grandfather
Pursuant to Order 6 made on 11 March 2022, in the event of an emergency as to the health or welfare of the children, the mother and paternal grandfather were obliged to advise the other of the emergency by telephone and text message as soon as reasonably practical. To facilitate that process, they were each required to provide the other with their mobile telephone numbers within 48 hours from the date of the Order, being on or before 13 March 2022.
It was not controversial that:
(a)The mother complied with Order 6 within the specified timeframe; however
(b)The paternal grandfather’s solicitors did not convey the email they received providing the mother’s telephone number to the paternal grandfather, such that at the time of swearing his affidavit on 9 September 2022 the paternal grandfather’s evidence was that he still did not have the mother’s telephone number; and
(c)On 25 August 2022, some five months after the order was made, the paternal grandfather’s solicitors sent a letter to the mother’s solicitors providing the paternal grandfather’s phone number. That letter was exhibited to the paternal grandfather’s affidavit filed 2 September 2022, and recorded that the delay in compliance was “due to [the solicitors] oversight, and not [the paternal grandfather’s].” It made clear the paternal grandfather’s willingness to comply with court orders.
The mother’s evidence was that she was unable to inform the paternal grandfather about any of the important things that had happened to the children while they were in her care, including, for example, taking them to the dentists and to a general practitioner, because she did not have his number. She insisted that if she did, she would have done so. I accept the mother’s evidence on this topic, it being consistent with the broader tenor of her case being that she has attempted and continues to be willing to cooperate with the paternal grandfather to promote the best interests of the children but has been prevented from doing so.
The paternal grandfather saw no value in communicating with the mother about the children. An apt example of this was that he did not attempt to message the mother about X’s suspension from school, taking the view that “if the school informed the mother, why should [he]?”. On the subject matter of whether it would be of assistance to X if he spoke to the mother about his academic and behavioural challenges at school, he said in addition to the school having responsibility to inform the mother, he then said “I know what is best for [X]”, being dismissive of the mother’s role in X’s parenting, and later said “she left school in Year 7” and questioned what kind of discussion he could have with her. Similarly he conceded he had not told the mother about X receiving a prescription for Ventolin either directly or through their lawyers. It was probative that the grandfather did not ask his solicitors for the mother’s telephone number at any time since March 2022.
Neither the mother nor paternal grandfather raised any concerns about changeover occurring at McDonalds albeit that they conceded there has never been a discussion between them at changeover.
Time since the March 2022 orders
As recorded above, on 11 March 2022 I made interim orders providing for the children to spend two of every three weekends with the mother from the conclusion of school on Friday to the commencement of school on Monday. The children’s time with the mother pursuant to the March 2022 orders commenced on Friday, 10 June 2022. The mother and grandfather each deposed to X being hesitant to go with his mother at first, but complying when his paternal grandfather said to him “you must go”. X complied with this direction. The children have attended the time with the mother, in accordance with the orders made on 11 March 2022.
As was the case when the mother exercised supervised time with the children, her affidavit evidence records her planning activities for the children and anticipating their needs prior to spending time after March 2022. This included taking the children to a religious centre with her family, to bowling, to birthday parties, to the Vivid Festival, out for meals, to the aquatic centre, to the Sydney Easter Show and to movies. Her affidavit evidence records, absent challenge by the paternal grandfather, that the children have been “great on most Saturdays and Sundays” but on occasions they have misbehaved and been rude, including swearing at her. In her oral evidence, she gave impressive evidence as to using her parenting skills to regulate the children’s antisocial behaviours and using effective discipline by removing access to electronic devices.
Notwithstanding the paternal grandfather’s perception that X especially is opposed to spending time with his mother, X added his mother to Snapchat as a method of communication with her when he was not in her care.
The extent of the evidence of the paternal grandfather by way of complaint as to the time spent by the children with the mother after March 2022 was as to the children complaining to him about being hungry and what disliking what they had to eat, as to them being unsupervised when riding their bikes, and as to them reporting to him that they don’t enjoy their time with their mother.
The paternal grandfather gave evidence of a phone conversation he had with X on the Monday following the children’s first full weekend with the mother, being on 13 June 2022. He deposed to X complaining of the mother’s refusal to give him money for the school canteen and insistence that he take the sandwich she had made him for lunch that day. The paternal grandfather elected to drop $10 to X’s school so that he could purchase lunch from the canteen. The paternal grandfather’s affidavit records Y similarly complaining about the mother’s sandwiches she makes for them to take to school. He records that:
2. …The practice we have fallen into since 13 June 2022 entails:-
(i) me giving [X] ten dollars every day so that he can by lunch from the school canteen.
(ii) [X] orders [Y’s] lunch from [Y’s] school canteen on the internet before they go to school on the Monday, being the last day of the weekend contact with [the mother], X pays for [Y’s] lunch with my credit card.
In cross-examination the paternal grandfather clarified that he allows the children to purchase lunch from the canteen every day, and that this practice is not unique to when they spend time with the mother.
I will return to the opinion of Dr P in relation to the subject matter of the paternal grandfather providing the children money for lunch on the day they left the mother’s care later in these reasons.
Safety app
The paternal grandfather in his affidavit file 2 September 2022 disclosed to having installed a “child safety application” on each of X and Y’s phones in early 2022, which allows him to view their location at all times. His daughter, Ms H, encouraged and assisted him with this process.
It was the paternal grandfather’s evidence that he has “been in the practice of checking on [the children’s] whereabouts whenever the children are not [in his care]”, including “regularly” when they are in the care of the mother. The paternal grandfather’s use of the tracking app grounded various complaints that the mother has no appropriately supervised the children, allowing them to go out of the home on their own (for example, when bike riding). He reproduced screenshots of the application showing the children’s locations on occasions when they were in the mother’s care but not at her home, including four occasions when they visited the maternal grandparent’s home.
It was the mother’s evidence that she only became aware of the tracking app upon reading the paternal grandfather’s affidavit filed on 2 September 2022. She said that learning of the app caused her fear that the paternal grandfather knew where she lived and would pass that information on to the father, and that she had as a result reconsidered whether she would remain at her current rented accommodation or seek new accommodation. She said that this circumstance caused her significant upset and anxiety. I accept that evidence.
In cross-examination, the paternal grandfather said that he tracked X every moment for “safety” purposes. It was plain that he saw now issue with his use of the tracking application and he openly said that he would continue to use it in the future, unless the Court ordered otherwise. He had no capacity to appreciate why his tracking of the children would cause the mother to feel anxious and distressed, or to feel threatened.
The tracking app resonated the covert surveillance of the mother as has occurred by way of the private investigator being used to track the mother. Each of these matters did little to establish trust and confidence as between the mother and the paternal grandfather. It is concerning that the important of the paternal grandfather’s evidence on these subject matters was dismissive.
Dentist issue
In compliance with Order 13 made on 11 March 2022, the mother took the children to the dentist in mid-2022. She did not inform the paternal grandfather of this, her evidence being that she did not have his number to do so. She deposed to the children’s attendance at the dentist in her updating affidavit filed at 9.50 am on 6 September 2022.
The paternal grandfather in his second updating affidavit filed on 9 September 2022, gave evidence in response to the mother’s updating affidavit as follows:
(xii)[In late] 2022 I spoke to [the children], saying words to the effect:-
Me: “Has your mother ever taken you to the dentist?”
[X/Y]: “No.”
Accordingly I made arrangements for the children to see [Mr LL], a dentist with [YY Company] at [KK Street] in [Suburb MM], [in late] 2022.
The paternal grandfather’s asserted timeline of events, being that he asked the children whether they had attended the dentist the day prior to the mother filing an affidavit saying that she had done that, is difficult to accept. In cross-examination the paternal grandfather said that he could not recall when he made the appointment or whether it was before or after reading the mother’s affidavit, but contended that if he had read it and known that the children had already attended a dentist with the mother, he would not have arranged for them to do so again while in his care.
It is indicative of the absence of proactive parenting by the paternal grandfather that he had not determined to take the children to the dentist, notwithstanding that issue was squarely raised during the course of the hearing in February 2022. The trigger for him to take the children to the dentist appears to have generated from a letter sent by his solicitors to the mother’s solicitors on 25 August 2022, enquiring whether the children had been taken by the mother to the dentist, and if so, when. The paternal grandfather did not consider making contact with the mother himself to progress that inquiry. On his understanding, the requirement for the children to attend at the dentist had been ignored for six months and appeared only to enter his mind in the shadow of the trial recommencing.
This circumstances is further indicative of the paternal grandfather relying on the children to be the conduits of the flow of information between the households. He was unaware or blind to the conflicting loyalties that the children owe between his and the mother’s household.
X and Y
Notwithstanding his affidavit evidence that the children are “developing very well”, the paternal grandfather has clearly encountered and met significant challenges presented by the children to date. A review of the Department of Communities and Families material produced under subpoena provides insight into some of those challenges, including the children’s delayed toilet training and Y’s “very violent” and erratic behaviour.
The paternal grandfather’s limited affidavit evidence on this subject appears to suggest that he has been able to manage those challenges, for example in saying:
18. …[The children] still swear every now and then. They pick swear words up from school. When they do I admonish them. For example, every now and then I hear them use the ‘fuck’ word. When I do, we typically say to one another words to the effect:-
Me: “Don’t use this word. Don’t ever use this dirty word.”
[X/Y]: “We didn’t say the ‘f’ word. We said ‘fricken’.”
However, the reality of the paternal grandfather’s experience of the children as described by him in cross-examination is quite different to that portrayed in his affidavit. He accepted that X has a propensity to be untruthful, and said that he had approached the school for assistance in dealing with all of his “issues and problems”. The paternal grandfather recounted his unsuccessful attempts to remove the children’s privileges (such as limiting their use of technologies and not giving them money to buy lunch from the canteen), in an effort to correct their behaviour and motivate them to study. He conceded that he did not follow through with the discipline he had threatened to use.
The paternal grandfather’s permissive conduct in response to the children’s behavioural concerns was echoed in the family report, wherein Dr P observed that:
139.…The children are attending school, their basic needs are being met and have adjusted to residing with their grandfather and have a predictable, stable and safe home environment. The behavioural concerns outlined in the supplied documentation provided by their contact centre demonstrated consistent boundary testing, swearing, violent behaviour and disrespect of their mother and their female peers in general. It appears [the paternal grandfather] has made minimal or unsuccessful attempts to manage their behaviour, and exhibits a rigidity in his thinking that suggests he would be unlikely to seek help on this matter. It appears [the paternal grandfather] has made minimal or unsuccessful attempts to manage their behaviour, and exhibits a rigidity in his thinking that suggests he would be unlikely to seek help on this matter. The possibility that he is not just condoning of such anti-social behaviour, but may potentially be fuelling it remains open.

The paternal grandfather was not sure whether X or Y had friends. He said they do not speak about friendships and that they do not have friends over or visit friends’ homes. X has exhibited violence towards other children, including punching a student in the stomach unprovoked, and kicking a student on the leg.
An objective reading of their school reports from 2018 to 2022 records some historic significant absences that were subsequently rectified. They record each child’s academic performance and social behaviour initially improving, and then (particularly for X) declining steeply as they entered the later years of primary school and first year of high school.
Y’s schooling
In mid-2019 Y received a formal caution from the principle of BB School for using “inappropriate language of a sexual nature towards female students.” He was reported to have repeatedly punched a female student.
In late 2021 Y received a further formal caution for engaging in an argument with another student, wherein he “punched the other boy in the head”. The caution depicts that notwithstanding the other student involved did not retaliate physically and rather was “trying to get away” Y persisted in being physically violent towards the child by “swinging punches and knees”.
Each of the above incidents culminated in Y being suspended from BB School for a period of five days in late 2021.
X’s schooling
X has faced significant challenges at school, both within the classroom and outside it. He presents as a challenging student with significant behavioural concerns, and a strong disinterest in his own education.
X’s aggressive behaviour at school resulted in him receiving a period of suspension from his primary school in mid-2020.
Notwithstanding the suspension, X’s problematic behaviour continued: less than one month later he was issued a formal caution after engaging in a physical and verbal fight with another child in the school playground. In late 2020 he was issued a further caution for fighting with Y at lunch, including “kicking, punching and grabbing him around the throat to strangle him”. The paternal grandfather was informed by each of these cautioned by way of a letter sent home to him by the school principle, those letters forming part of Exhibit ICL-4.
X has recently started high school in Year 7 at a new school, CC School. He has been the subject of 34 negative incident reports during his first year of high school. Those include:
(a)In mid-2022, engaging in three reported physical fights with other students, including throwing punches at other students;
(b)In mid-2022, shouting “fuck you cunt” at another student during class, before threatening to bash another student;
(c)Also in mid-2022, calling a female teacher an “animal” in K Language;
(d)In mid-2022, repeatedly taunting another student and then attempting to pull that student’s pants down;
(e)In late 2022, calling other students in the class a “f*cking c*unt” (as it was recorded).
As was observed by the Independent Children’s Lawyer during Dr P’ oral evidence, X’s behavioural issues range from:
… use of inappropriate language, misbehaviour, defiance against teachers, technology misconduct – which usually refers to him using mobile phones in class and not putting the phone away when told to – bullying of other children, having zero assessments and not completing work and not taking required equipment to school.
(Transcript , lines 25-30).
The Independent Children’s Lawyer observed, and it was implicitly accepted by the parties, that of the 34 negative incident reports between early and late this year, 24 were reported by females. A portion of X’s misbehaviour is directed particularly towards female teachers, including referring to one as a “bitch”, another as an “animal” (in K Language), and on another occasion, telling a female teacher that he “[didn’t] give a fuck” when she asked him not to cut the line at the school canteen.
X’s teachers observe that he is “prone to random acts of thoughtlessness” and that he has a tendency to bully and harass other children.
Save for annexing the children’s school reports to his affidavit, the paternal grandfather gives limited evidence as to X’s behavioural problems. It was clear in cross-examination that he had some awareness of what has been going on for X at school, but that he did not really appreciate the extent of X’s challenges. He said that he did not know what the children’s reports said until they were obtained by his solicitor for the purpose of his updating affidavits for trial.
A significant issue for X has been his use of technology during school, which was reported by teachers on at least nine occasions to be an issue. It has clearly impacted on his capacity to concentrate in class and learn. In cross-examination the paternal grandfather accepted the description of X as “distracted” in class and accepted the proposition that he learns best when free from technology.
Notwithstanding this recognised issue with X’s use of electronic devices, the paternal grandfather said he purchased an apple watch for X, which he wears every day to school. It was the paternal grandfather’s evidence that the watch was bought on X’s promise that “he would look after himself [and] he would study”, and hence the watch was to act as an incentive to encourage him to study. This process of the paternal grandfather to direct X’s behaviour was wholly unsuccessful.
When explaining his efforts to encourage X in his schooling the paternal grandfather’s tone became exasperated. He recounted examples of X rebuffing the paternal grandfather’s attempts to monitor his homework by telling him to “go away”, and similarly rejecting the paternal grandfather’s offers to assist him with his school work or to engage a tutor to do so. On the occasions that the paternal grandfather has raised his challenging behaviour with X, the paternal grandfather recounted X dismissing those concerns and accusing the teachers of being untruthful. To his credit, the paternal grandfather acknowledge that he really did not know how to address X’s behaviour, including his tendency to lie, and hence was seeking assistance from the school counsellor to do so.
I accept, consistent with his oral evidence, that the paternal grandfather has used his best efforts to encourage X to complete his school work and engage actively with his education, but find that those efforts have not been successful.
The paternal grandfather’s view, as expressed in his oral evidence, is that the children should be self-motivated, and that in order to succeed and thrive at school X will need to “find it in himself” to do so, rather than being pushed by external forces. For example, he said that the school offers after school tutoring for students require extra support, but that X did not want to go. When questioned on this by the ICL, he said that:
[Counsel for the ICL]: So if he doesn’t want to go, you don’t think he should go?
[The paternal grandfather]: No. If he said I don’t want to attend, in my point of view, no. He is supposed to go, he is supposed to learn… He is doing nothing.
The mother confirmed in cross-examination that she had been contacted by the school on at least two occasions. She has attended the school, and spoken to teachers and others as to both X and Y’s academic and behavioural challenges. Her capacity to implement any processes to assist the children during the school week has been significantly limited by the children not being in her care at those times.
The mother said in her oral evidence that she had inquired into tutoring for the children with various organisations including NN Organisation. She said that she had been unable to enrol them in such tutoring because it took place after school on Tuesday and Friday afternoons and involved take-home work to be completed during the week, and hence she would not have been able to facilitate them attending.
X’s mental health
On the second last day of the trial, during the oral evidence of Dr P, counsel on behalf of the paternal grandfather tendered a letter addressed to X’s “receiving doctor” dated 14 September 2022 (being that same day). The letter was executed by Ms OO, identified as a “provisional psychologist”, and Ms PP a “senior psychologist”, on the letterhead of a NSW Government department.
The tender of the letter was unsuccessfully objected to be counsel on behalf of the mother, and it became Exhibit GF-4.
The letter recorded that X had been referred to and attended one session with the school counselling session, during which he presented with symptoms of anxiety and depression. It relayed X’s alleged belief that his symptomology arise from “an ongoing family court case, in which his mother is applying for full custody”, and from “the fear of having to live with his mother”.
The letter was produced after only one meeting with X, and it would seem, without the benefit of relevant background material, including, for example, input from his parents or the paternal grandfather or the family report. It was received on the third day of the second tranche of the trial, and in opaque circumstances. For example, it is not clear who instructed X to attend counselling at this late stage of the proceedings. In circumstances where the foundations for the opinions contained in the letter are unknown and untested, I give the contents of the letter little weight, save for it being a foundation for a referral for X to attend a general practitioner to obtain the benefit of a mental health care plan.
Beyond Exhibit GF-4, there is evidence to suggest that X is experiencing some mental health difficulties at the moment. It was the paternal grandfather’s evidence that X and Y have “had some psychological issues in [their] life”. In his oral evidence, the paternal grandfather when commenting on X’s poor school results said:
[The paternal grandfather]: I talked to him many times… [X], go study! Go study! He doesn’t care. [He says] “I have no future, I don’t want to study”.
…
[The paternal grandfather]: [X] told me once while the teacher was explaining her lessons, “I was putting my telephone between my legs and I was not listening”. So I told him, “why, you should listen, you are destroying your future”. [X] said “I have no future”.
When asked to elaborate on why he thought X made comments like this, the paternal grandfather said that X frequently expresses his thoughts that he has “no future” and “no luck like other kids” because he has “never had [a] mum” and “never had [a] dad”. At this point of his oral evidence he became emotional, and relayed X’s comment that:
“…at least I have a grandpa to put a roof on my head and the plate on my dinner table”.
In cross-examination Dr P was asked by the ICL to consider this evidence of the paternal grandfather. He forcefully opined that:
… one of the comorbid cognitive features of depression itself is a sense of failure, a sense of hopelessness and helplessness… But at 12 years old… this is a very shocking situation and it should shock people into a state of alarm and say this – this young lad needs a lot of help, and clearly he’s not getting it in the environment he’s in.
I accept Dr P’s evidence on this topic. I find that X’s disclosure to the paternal grandfather that he feels that he has no future is particularly alarming and necessitates fast and robust action by the Court to change the trajectory of X’s life.
The oral evidence
The paternal grandfather
The paternal grandfather gave his oral evidence through a K Language interpreter. While his oral English language skills are limited, he had little difficulty understanding the questions put to him in English, and answered partly in English and partly in K Language. He said he has good skills and capacity at reading English.
When taken to specific parts of the trial affidavit evidence of the mother it was clear that he was either not aware of the contents of her affidavits or that he had read them and had forgotten the contents. He said that he thought he had read the mother’s trial affidavit but that it was “a long, long time ago”, and that he could not recall whether the mother’s updating affidavit had been interpreted to him prior to the trial.
During the paternal grandfather’s oral evidence given in February 2022 he said that he did not know the mother ceased taking drugs in late 2017, nor that she had returned negative urinalysis testing results consistently since that time. These facts were clearly set out in the mother’s affidavits. That said, upon the mother’s evidence being identified to him during the course of his cross-examination as to her stable housing, full-time employment and that she had refrained from consuming drugs since late 2017, he explicitly accepted each fact and accepted the rehabilitation undertaken by the mother of her life. He did not raise doubts as to the mother’s current position during his oral evidence given in September 2022, and the second half of the trial proceeded on the basis of these facts being uncontentious.
The paternal grandfather, upon the recommendations of Dr P being read to him in his cross-examination, made it unequivocally clear that he would not accept the recommendations.
The paternal grandfather obtained tertiary qualifications in the USA. He presents with very traditional views. He highly values the education of the children.
The paternal grandfather’s evidence in cross-examination reflected his absolute and complete dismissal of the mother and her capacity to care for the children. By way of example, he said:
·He was not willing to work with the mother to support the children at school.
·He did not believe the mother would be able to X with school, saying “the school informed her, I know what [is] the best for [X], she left school when she was in Year 7, so I don’t know how she knows what [is] the best for [X]”.
As recorded in my interim reasons, the paternal grandfather’s view of the mother of children in the household is to serve, clean and shower the children. He is dismissive of the role of the mother in the education of the children having regard to his view as to the mother’s low level of secondary education. My impression was that these views are a product of his own upbringing. Although when prompted he acknowledge that the mother had made substantial gains in her own life (by way of her sobriety and current employment), he could not depart from this rigid view of her. In his oral evidence he could not identify a single positive thing that the children had said about the mother. His entrenched dislike of the mother was overt. It was his evidence that:
[Counsel for the ICL]: You don’t like the mother, is that fair to say?
[The paternal grandfather]: When she first married my son I liked her than my daughter. But she proved to me she doesn’t deserve that, and I treat her like my own daughter… but I get from her the lying… so many things.
The paternal grandfather’s attitude towards the mother is shaped in part by what can be described as a long-running feud between him and the maternal grandfather. He made no attempt to mask his dislike of the maternal grandfather, describing him in cross-examination as a “very bad person” with a “very bad reputation”. That dispute has disseminated to other members of each family. When coupled with the paternal grandfather’s experience of the mother’s failure to prioritise the children and her neglect in the parenting of the children prior to her imprisonment, it is clear that his current attitude towards the mother as the children’s parent is both dismissive and grossly unfavourable. Dr P opined that “[the grandfather’s] traditional views around gender roles means that he is further entrenched in his views that [the mother] is solely at fault, which is now being modelled through the children's account of events and views.”
Dr P recorded that the paternal grandfather presented as “emotional, on occasion quite histrionic during his interview, exhibiting anxiousness, panic symptoms, teary eyes as well as anger and frustration…”. The paternal grandfather exhibited a similar presentation during his oral evidence. In cross-examination by the ICL he became highly emotionally charged, standing up out of his seat in the witness box and raising his voice to emphatically yell his answers. After settling back into his chair he said he was not aware that he had stood up and yelled.
It was clear to me that the paternal grandfather deeply loves and cares about the children, and that he was profoundly affected by the parents’ neglect of the children prior to them coming into his care in 2016. That much was reflected in Dr P’ observation of the paternal grandfather’s anger at the state in which the children came into his care, including the “teary” comment made to Dr P that the parents “had money for drugs and alcohol” but would deliver the children to his home without having eaten breakfast or lunch. Many of his criticisms levelled against the mother were directed to what he perceived as her not having adequately fed the children, which, after conceding that she no longer posed a risk to the children, remained his outstanding complaint of her parenting.
In cross-examination the paternal grandfather was firm in his historic compliance and intention to continue to comply with any orders made by the Court, saying emphatically that he is “under the law” not “above the law”. I accept and find that the paternal grandfather has a profound respect for the law and the authority of this Court together with any orders that it makes.
Ms H
Ms H (“the paternal aunt”) is the daughter of the paternal grandfather and the aunt of the children. In her oral evidence, the paternal aunt presented as being closely aligned with the paternal grandfather and influenced by her close relationship with him, and clear continued distrust of the mother.
The paternal grandfather presented the paternal mother as an educated woman, upon who he relied for educating the children.
She was not aware of the extent of the children’s behavioural and academic challenges at school, he evidence being that this was not something she had discussed in depth with the paternal grandfather. It was her understanding that X is “struggling a little bit” academically, but that in socially his progress is “nothing out of the ordinary” in experiencing challenges with friendship groups is a normal experience for pre-teens of his age. When she learnt of Y’s school suspension during her cross-examination by the ICL, she attributed this to potential issues with friends and “social influences”.
During cross-examination, the paternal aunt was presented with evidence of the children’s aggressive and disrespectful behaviour and extremely poor academic performance at school. She put these things down to the boys growing older and transitioning into high school, and minimised the children’s reported behaviour. I find that the paternal aunt is not as actively engaged in assisting the paternal grandfather in parenting the children as implied in her affidavit evidence and the evidence of the paternal grandfather.
Her attitude as to “they need some sort of relationship with the mother”, but that it need not be necessarily a close one is reflective of the attitude taken by the paternal family to the mother and her role as a parent of the children. I find that this attitude is likely to be at least indirectly reinforced with the children at times when they are with the paternal family.
The mother
The mother impressed as both an honest and responsive witness who demonstrated considerable insight into the needs of the children and the impacts of her neglect and drug use on them.
The mother said she had engaged a senior clinical psychologist at the recommendation of Dr P. She said she saw the psychologist for the first time in early 2021 and had a number of sessions with that psychologist. She no longer attends upon that therapist regularly.

This incident was the subject of discussion in my interim reasons at [58]-[63]. The paternal grandfather deposed in his affidavit that in 2016, at a time when the children were living predominantly with him but spending sporadic time with their parents. In his affidavit, the paternal grandfather gave evidence of a conversation he had with the father:
[The father]: “Today [the mother] took [Y] to the bathroom in our house. She opened her legs and showed [Y] her private parts. She was taking a photograph of her vagina while [Y] was with her.”
During cross-examination, the paternal grandfather’s account of these events faltered. It was plain that he had no real recollection of when the incident occurred or how old the children were at the time.
The father gave evidence in his affidavit of looking through the mother’s phone at some point during 2017 and discovering “a photograph she had taken of her genitals in a bathroom”. He said that “[Y] was in the photograph smiling”. His affidavit recorded that:
18.I told [the paternal grandfather] about the photograph. [He] was furious. I can’t remember what he said. This was shortly before I went to gaol. I was taking a lot of drugs at the time.
In cross-examination, the father’s account of the incident also eroded.
There is no corroborative evidence of the alleged incident. The paternal grandfather accepted that he had not seen the photograph himself but rather had relied on the information relayed to him by the father, who was on his own concession, drug-affected at the time. The father said that he did not have a copy of the photograph, and it was not produced at any time during the proceedings.
There was no suggestion maintained by the paternal grandfather at trial that the mother has ever acted towards the children in a way that is sexually-inappropriate.
Having regard to the confusion in the paternal grandfather’s evidence I am not satisfied that the paternal grandfather has discharged the evidentiary burden on him to establish that the photograph incident occurred in the way described by the father and grandfather, if at all. I find there is no risk posed by the maternal grandfather or the maternal family arising from this allegation.
Family violence between the mother and father
The mother in her affidavit said that the father perpetrated family violence against her throughout the relationship. Her evidence as it pertains to this period is broad and generalised. She said that the father was verbally and physically abusive of her, such abuse leading her to spend a few days per week at her parents’ home after Y’s birth. Her affidavit records:
55.During my time with [the father] I was subjected to assaults by him including him choking me, stabbing me in the leg and him having me abort a child. The incident where he choked me occurred at a motel where I was staying at [Suburb RR]… [The father] found me at [Suburb RR], he forced his way into motel room and began to choke me by placing his hands forcefully around my neck. The stabbing incident occurred whilst [the father] and I were staying in an apartment in [Suburb SS]. The [children] were with us at the time. The incident occurred in the presence of the [children]. The abortion took place in [mid-2017]. I did not want to abort the child, however, [the father] took me to a clinic to have an abortion.
The police records contained in the ICL’s tender bundle reveal that in early 2018 the mother reported incidents of family violence occasioned by the father to the police. She gave a statement in which she alleged that in mid-2017 she fell pregnant and that against her wishes the father forced her to have an abortion by threatening her physically. The relevant records show:
[In early June 2017]… [the father] forced his way into the hotel room pushing past her…. The [mother] stated they argued which turned physical which resulted in the [father] grabbing the [mother] by the throat. The [mother] states when the [father] began to squeeze the throat of the [mother]. The [mother] stated she got dizzy and could feel her throat "tightening". And that she almost blacked out… The [mother] provided police with a photograph of the injuries she sustained…
In early 2018 the father was charged with two family violence related offences in mid-2017. He was convicted and received a conditional-release order commencing in late 2018 and was required to undergo domestic violence training which he said he completed while incarcerated.
The father’s affidavit was silent as to the incidents of family violence describe by the mother during the relationship. In cross-examination he said that he denied the allegations as recorded in the police material, but nonetheless entered a plea of guilty to the charge of assault because his lawyer “told him he had to”.
Further corroborative evidence of the family violence perpetrated by the father is found in the reports made to the Department of Communities and Justice included in ICL-3. One particular record created in mid-2017, which appeared to arise from a reporter from the children’s primary school records:
On Monday [X] disclosed to his teacher that .his dad said he was "going to kill grandpa". [X] was concerned that his father would actually do it. Caller stated that the family are 'erratic'.
Caller stated that there is family conflict between the father and his siblings (paternal uncles). Caller believes that children may have witnessed violence in the past [X] has previously witnessed his father punch his mother in the face. This incident occurred earlier this year. Caller believes that children may have witnessed violence in the past [X] has previously witnessed his father punch his mother in the face. This incident occurred earlier this year.
The father in his cross-examination denied that he had ever been violent towards the children, or to the mother in the presence of the children. When he was presented with the above allegations reported to the Department of Communities and Justice, he said that it was the first time he had heard of the children’s concerns as expressed to the school and that X was not telling the truth if he had disclosed witnessing such violence to his teacher.
Conflict between the maternal and paternal families
Incident at TT Restaurant
The paternal grandfather reported to Dr P that on one occasion in 2019 while taking the children for a meal, he ran into the maternal grandfather and his two sons (X and Y’s maternal uncles) at TT Restaurant. An argument broke out, and the maternal grandfather allegedly “grabbed” X, and “pushed and spat” at the paternal grandfather when he tried to intervene.
The maternal grandmother denied this version of events in both his affidavit and in cross-examination. He referred to his contemporaneous statement given to police as being his recollection of the incident.
Police records of the incident formed part of the Independent Children’s Lawyer’s tender bundle at Exhibit ICL-2. They record that in early 2019, the paternal grandfather reported an “assault” having occurred between 5.00 pm and 6.00 pm that evening, which entailed the maternal grandfather approaching the paternal grandfather and the children while they walked along the parade at Suburb UU and attempting to “drag [X] away”. The paternal grandfather reported that the maternal grandfather in response to his intervention “punched [him] with a closed fist on his right shoulder” and later spitting in his face. Notwithstanding the paternal grandfather’s contention, the records reveal that no marks were visible on either he or on X.
The reports further record that later on the same evening (at about 11.30 pm), the maternal grandfather walked past where the paternal grandfather and the children were staying and took pictures of him sitting on the balcony.
After the paternal grandfather reported the incident, police conducted interviews and took statements from the maternal grandfather and a witness to the events, being a friend of his. The maternal grandmother is recorded as conceding that he approached the paternal grandfather and the children, but rather than a physical confrontation ensuing, said that he merely said to the children “[hello] boys do you know me? I am your grandfather.” The maternal grandfather also conceded to taking photos of the children on the balcony as alleged.
After interviewing the grandfathers and the witness to the events and finding no CCTV footage of the event, the police did not press charges on either of the grandfathers, concluding that their “conflicting versions” and “potential motive[s] for fabrication of the incident” precluded any further action being taken.
Each of the paternal grandfather and maternal grandfather gave oral evidence consistent with their own version of events as recorded in their affidavits and the police records. It would not be possible on the available evidence for me to make any finding as to exactly what happened on this occasion or to attribute blame to one person or another. I am, however, satisfied that some confrontation occurred on this occasion and that the children were witness to it. I find that the incident is reflective of the antagonism between the maternal and paternal families, and of the grandfathers being unable to prioritise protecting the children from conflict above advancing their dispute against one another.
The father’s car
The father recorded in his affidavit that in mid-2021 at about 7.30 pm he observed “a wheely bin (sic) on [his] car which was parked in the driveway” of his home. He exhibited to his affidavit a series of photos showing a large domestic garbage bin lying across the front windscreen of his car, and the windscreen and the left hand window of his car being smashed.
He said that after noticing the car, he went back inside his home to call the police, and then exited again a few minutes later after hearing “loud banging”. It was his evidence that he witnessed the mother’s brother, Mr O, scratching his car and that the mother was present. The father reported the incident to the police.
A Court Brief Image Folio prepared by NSW Police for the purpose of proceedings taking place in the VV Local Court formed part of Exhibit GF-9. It contained 19 images of the father’s car taken by the attending police officer on the evening in mid-2021 and supported the father’s account of the car being badly damaged, with the front windscreen and the front left-hand side window smashed, and scratch marks to the body of the car.
The mother’s brother was arrested in late 2021, being the day after the incident. He was charged with one count of intentionally or recklessly damaging property in relation to a domestic violence situation. The criminal history of the mother’s brother recorded that he was convicted of this offence and was sentenced in the VV Local Court to a community corrections order for a period of 12 months commencing in mid-2022. The evidence is unclear as to whether he plead guilty or not to this offence.
In cross-examination the father’s evidence that the mother was present at incident faltered: he said that he was “pretty sure” she was there and that he thought (but was unsure) that he included this fact in his initial report to the police. The police records make no mention of the mother being present at the time. No charge was ever brought against the mother in relation to the incident. In the circumstances I find that it is more likely than not that the mother had no involvement in the damage to the father’s car.
Conflict outside the courtroom during the trial
On the afternoon of the third day of the trial in September, while the father was still in cross-examination, the maternal grandfather and father engaged in a verbal argument outside the courtroom.
Each of the father, mother and maternal grandfather gave a similar account of the events of that afternoon in cross-examination.
Upon the Court adjourning for the afternoon, the father exited the courtroom. At the time, the paternal grandfather was sitting on a row of chairs adjacent to the courtroom. It was disputed as to initiated the argument, but undisputed that the father and the maternal grandfather each shouted insults at one another. They did not make physical contact and remained a few metre away from the other at all times.
The mother upon hearing the argument left the courtroom and intervened. She said that she told the father to “just walk away” or words to that effect. The father complied with the mother’s direction and left the courtroom area. The mother calmed the maternal grandfather down with the assistance of her lawyers.
Although I am unable to make a finding as to what was said between the father and maternal grandfather, or attribute blame for initiating the argument, I find this incident was indicative of the deeply held dislike and the volatile conflict between the paternal and maternal families. On this occasion neither the father nor the maternal grandfather were able to regulate their own behaviour or mask their hatred of the other, even in the immediate presence of the courtroom and in the midst of a final hearing.
It is significant to my mind that the mother was able to diffuse the conflict between the father and maternal grandfather quickly and effectively. That she was able to do so provides confidence that she will continue to act as an effective mediator and neutraliser of such conflict in the future.
Alleged further risk posed by the maternal family
The criminal history of the mother’s brother, Mr O, was tendered by the paternal grandfather and became Exhibit GF-9. It revealed that the mother’s brother has had significant contact with the police over a number of years, commencing when he was 16 years old. He has on occasion been convicted of offences and has been imprisoned on at least two occasions.
Similarly, a criminal history record of the maternal grandfather was tendered by the paternal grandfather and became Exhibit GF-13. It recorded the maternal grandfather had been charged on three occasions with criminal offences, however two of those (one in 1993 and one in 2014) were withdrawn. The third related to an incident that took place in 2009, for which the maternal grandfather was charged with and convicted. He received a non-conviction order and was placed on a 10 month bond.
A further police document was tendered by the paternal grandfather and became Exhibit GF‑11. It purported to record the details of an Apprehended Violence Order protecting the father from the mother’s brother, Mr O. The record shows only an excerpt of the order and does not specify, for example, whether the order was made by consent or on a defended basis. It appears to apply from the 15 July 2022 and expire on 14 July 2024. Given the incompleteness of the record and that a copy of the final order was not produced, I place little weight on this exhibit.
Findings as to risk posed by the father and the maternal family
For the reasons given I am satisfied that there is an unacceptable risk of each of the father and the mother’s brother, Mr O, engaging in future violence in the event either of them were to spend time with the children unsupervised, to which the children may be exposed.
I accept the evidence of Dr P of there being significant risk factors in circumstances of the father’s current drug use, and that the Court should be “most cautious” in its approach to the children spending time with him. I further accept Dr P’s unchallenged evidence that parents with substance additions are more likely to be irritable and volatile, “which impairs their attentiveness, reaction time, and emotional availability”, and that exposure to this environment may lead the children to experience distress and chaos. I find that it is imperative that any orders made protect the children from this possibility.
As to the maternal uncle, the nature of the risk arising from the maternal uncle’s propensity for violence and criminal history was largely uncontroversial. There is no evidence as to the maternal uncle posing a physical risk to the children. Having regard to my earlier findings, I accept that the mother would act proactively in the event the maternal uncle engaged in inappropriate behaviour in the presence of the children and would remove the children from that environment. I find that any risk posed to the children by way of the paternal uncle will be ameliorated and mitigated if an order is made in the terms as sought by the parties, being that the mother be present if the children are to ever spend time with him.
Having regard to all the evidence, I am not satisfied that the paternal grandfather has established that the maternal grandfather poses an unacceptable risk to the children and the injunctive relief as sought restricting their contact with him will be refused.
Additional considerations
Section 60CC(3) sets out additional considerations in determining what is in the children’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(1)Issues relating to the children – their views, level of maturity, culture and relationships:
(a)Sub-section (3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views;
(b)Sub-section (3)(b) – the nature of the relationship of the children with each of the children’s parents and other persons, including any grandparent or other relative of the child;
(c)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the Court thinks relevant; and
(d)Sub-section (3)(h) – issues pertaining to the culture of the children if the children is Aboriginal or a Torres Strait Islander.
(2)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(a)Sub-section (3)(c) – the extent to which each of the children’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(b)Sub-section (3)(ca) – the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(c)Sub-section (3)(f) – the capacity of each of the children’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(d)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the children’s parents.
(3)Issues of family violence:
(a)Sub-section (3)(j) – any family violence involving a child or a member of the children’s family; and
(b)Sub-section (3)(k) – any family violence order that applies or has applied involving the children or a member of the children’s family and if applicable, taking into account a number of stated matters.
(4)Practical difficulty of implementation:
(a)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular sis.
(5)Avoiding further proceedings:
(a)Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(6)Other relevant matters:
(a)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.

In reaching my decision, I have considered all of the relevant sections of the Act albeit that I am not required as a matter of law to specifically address each such consideration. I will now address the relevant issues, upon the basis that I will not repeat my earlier findings on the s 60CC(3) subject matters.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated at [34]:
In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
and at [35]:
... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
As was observed by Dr P in his oral evidence, some of the opinions he expressed in the family report are now outdated, including as to the children’s views. During his interview with Dr P some two and a half years ago, X expressed that he wanted his time with his mother to decrease. Y presented as unsure if he wanted his time with the mother to increase. Dr P’s recommendation at the time of the family report was that the Court should be “quite measured” in its approach to accepting the children’s views.
At the date of the trial, the paternal grandfather was undisputedly the children’s primary carer. They had lived exclusively with him for approaching six years. Dr P clearly identified that the children’s primary attachment lies with the paternal grandfather. He said that if the children commenced living with the mother, the paternal grandfather would remain an important person in the children’s lives whose role should be respected.
Dr P observed and I find that the children are fiercely lawyer to the paternal grandfather. That is reflected in the children apparently having “nothing” positive to say about the mother to the paternal grandfather, and his evidence that they instead frequently criticised her. Dr P opined that X in particular is:
… aware of his internal dissonance about divided loyalties, about his sense of loyalty to his grandfather and also, obviously, quite a strong sense of attachment affection from him to his mother that he doesn’t actually want to give rise to in reality.
A further example of the children’s conflicting loyalties is that they did not tell the paternal grandfather that the mother had taken them to the dentist. The paternal grandfather’s explanation that they had merely forgotten seems incredulous. Rather, consistent with the paternal grandfather’s evidence that he does not really discuss the children’s time with the mother with them, I find that it is more likely than not that the children did not feel comfortable telling the paternal grandfather about their recent trip to the dentist and hence allowed him to take them again.
I accept and find that the children more likely than not hold a preference to remain living with their paternal grandfather. I accept Dr P’s evidence that children will gravitate in their views towards a “permissive” and “condoning environment”. It is to be expected that the children will express a view against a complete restructure of their worlds at school and at home.
The children’s views are an important matter to take into account. However, I accept Dr P’s evidence that while the “condoning and permissive” environment offered by the paternal grandfather is likely to be more attractive to the children, it is exactly that environment that has consolidated X’s problematic behavioural profile, and is beginning to affect Y’s. Hence the children’s views must be a subsidiary consideration to their own well-being and best interests.
There is little doubt that each of the mother and the paternal grandfather love with children and that they each believe that they are acting in their best interests.
I am satisfied that the mother’s home will provide the children with a sense of security and stability. The mother has indicated that she will continue to support the children in their current school and plans to engage additional support for their education and to ensure their well-being.
I accept the evidence of Dr P and find that such a change by removing the children from the care of their paternal grandfather, who has acted as their primary carer for most of their lives as they would remember, is likely to have considerable impact upon them. I accept that the children will likely experience a sense of grief and confusion about the temporary loss of their relationship with their paternal grandfather and of anxiety from separating from their home where they have lived for many years. Inevitably there will be a degree of distress for the children from this process.
The paternal grandfather has exhibited his capacity to meet the children’s physical needs and has demonstrated a commendable attitude towards accepting the responsibilities of parenting that, ideally, would not have been his to take on in the first place. The mother does not raise any concerns as to the paternal grandfather’s capacity to provide for the children’s physical needs.
As recorded in my interim reasons, the paternal grandfather sees his role as being a grandfather, father and the mother to the children. Notwithstanding his capacities, I attach weight to Dr P’s oral evidence and his evidence that it is in the best interests of the children for the paternal grandfather to be just that: a grandparent, who loves and has great affection for them, but is not responsible for their day to day care.
I find that the mother and the paternal grandfather each have deficient capacities to promote the children’s relationship with the other, consistent with the observations of Dr P’s in his report.
As recorded, the paternal grandfather described the mother in a “consistently negative way”. His negative perception of the mother is clearly informed by his experience of her while she was abusing a prohibited substances, however, he presented as being unable to recognise the gains she had made since being released from prison. I am not confident that he has demonstrated a capacity to shelter the children from his own perceptions of the mother and accept Dr P’s opinion that “there appears little doubt that he is transmitting these negative views to [the children]”.
The mother since her release from prison has been diligent in taking every opportunity available to him to spend time with the children and play a role in their lives.
Parental Responsibility
Section 61DA of the Act requires the Court, when making any parenting order in respect to a child, to apply a presumption that is in the best interest of a child for their parents to have equal shared parental responsibility for the child. The presumption applies unless there are reasonable grounds for the Court to believe that the child concerned has been subjected to abuse or family violence (s 61DA(2) of the Act) or it may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility (s 61DA(4) of the Act).
The final submissions of the Independent Children’s Lawyer and each of the mother and paternal grandfather clearly raised issues as to the application of the presumption in this matter. This sensibly reflects the reality that the mother and the paternal grandfather have demonstrated no capacity for joint decision-making, and the circumstances of my findings that the father (as a parent of the children) has engaged in family violence.
I find that in making these orders it is not appropriate for the presumption to apply in circumstances where:
(a)Each of the mother, the paternal grandfather and the Independent Children’s Lawyer specified that no such order is sought; and
(b)No direct communication has occurred between the mother and paternal grandfather or between the mother and the father for many years;
(c)The father not being materially engaged in the children’s lives since he was imprisoned; and
(d)The paternal grandfather’s absolute evidence that he and the mother have not communicated and are not able to communicate.
Given my findings, it is in the best interests of the children for the mother to be solely responsible for decisions relating to their long term wellbeing.
As the presumption is rebutted need not consider it is not necessary to consider whether orders should be made to the children to spend equal or substantial and significant time with each parent (s 65DAA of the Act).
Having regard to the paternal grandfather’s attitude to the mother, and the inherent unlikelihood of meaningful communication between them, I will not order an exchange of information between them as to long-term issues. It will be a future source of friction and disquiet. It is in the interests of the children to ensure the paternal grandfather is aware of their progress at school. Orders will be made to facilitate that process.
Conclusion
For all these reasons, it is in the children’s best interest for the children to live with their mother. I accept that it is in their best interests for that transition to be supported in the manner opined by Dr P. On balance, a period of 10 weeks, being the entirety of Term 4 2022 will ensure that the children can “bed into” the mother’s household, absent inter-family hostility and unfettered by interference. This time period will ensure that the children have time to adjust, avoiding loyalty conflicts. All the parties agree that holiday time interaction is different from that during the school term. To my mind an adjustment to the regime proposed by the Independent Children’s Lawyer is in the best interests of the children, in the terms as ordered at the commencement of these reasons.
I will not make a number of the orders as sought by the mother, paternal grandfather and Independent Children’s Lawyer that have not been the subject of submission or identification as to evidentiary foundation. The orders made are prescriptive so as to avoid future disputes and conflict. The Independent Children’s Lawyer will be directed to confer in person with the children within 48 hours so as to ensure that they are aware of the Court’s orders, its reasons for the orders, and the consequences that will flow should all the relevant participants to this parenting enquiry not progress the Court’s determination as to how their best interests ought to be promoted.
The application by the Independent Children’s Lawyer for costs
The Independent Children’s Lawyer applied for an order that each of the mother and paternal grandfather pay equally her costs as sought in Exhibit ICL-7, being a sum of $11,461.75 each within a period of six months.
The paternal grandfather is on a Centrelink pension living in a rental property. The mother is on a limited income and will have the obligation to meet the costs of maintaining the children. She too resides in leased premises and has no property.
Each of the paternal grandfather and the mother’s costs of the proceedings have been funded by extended family. The Independent Children’s Lawyer submits that this source will be available to fund any costs as ordered. I do not accept that submission. There is no evidence to the import that if called upon by the mother or the paternal grandfather, other family member would provide funds to pay any cost liability (see Hall & Hall (2016) FLC 93-709).
The Independent Children’s Lawyer has undertaken a significant and important role in these proceedings for the benefit of the children.
That said, in all of the circumstances I do not find there are circumstances in this matter to justify the making of the costs order as sought. The application of the Independent Children’s Lawyer for costs will be dismissed.
For all of the reasons, I make orders as set out at the forefront of these reasons.

I certify that the preceding two hundred and ninety-three (293) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.
Associate:
Dated: 28 September 2022

File number(s):	SYC 6820 of 2017
Judgment of:	CAMPTON J
Date of judgment:	28 September 2022
Catchwords:	FAMILY LAW – CHILDREN – Where the mother and father were convicted of criminal offences relating to the consumption and distribution of a prohibited substance and subsequently gaoled – Where the children reside with the paternal grandfather – Where the paternal grandfather seeks sole parental responsibility for the children – Where the mother proposes graduating time until the children are returned to her care and that she have sole parental responsibility for the children – Father does not apply for parenting orders but supports the paternal grandfather’s application –Where the mother had a history of drug abuse but is now rehabilitated – Where the children have demonstrated challenging behaviour and are struggling at school – Where the mother is adept in responding to the children’s needs and has the capacity to address their behavioural and academic challenges – Where the paternal grandfather and the mother have no capacity to communicate with one another – Where the mother has spent regular and increasing time with the children for the past two years – Orders for the children to live with the mother and to spend time with the paternal grandfather following a period of suspension in that time.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAA
Cases cited:	Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 B & B (1993) FLC 92-357; [2014] FamCAFC Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Briginshaw v Briginshaw (1938) CLR 336; [1938] HCA 34 Burton & Churchin (2013) FLC 93-561; [2013] FamCAFC 180 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15 G & C [2006] FamCA 994 Hall & Hall (2016) FLC 93-709; [2016] HCA 23 Isles & Nelissen [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski & Albright (2007) Fam LR 518; [2008] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Najm & Najm [2022] FedCFamC1F 87 Najm & Najm (No 2) [2022] FedCFamC1F 122
Division:	Division 1 First Instance
Number of paragraphs:	293
Date of hearing:	21 – 24 February; 12 – 16 September 2022
Place:	Sydney
Counsel for the Applicant:	Mr Wong
Solicitor for the Applicant:	East Sydney Law Pty Ltd
The Respondent:	Litigant in person (did not participate)
Counsel for the Respondent:	Mr Eardley
Solicitor for the Second Respondent:	Emanuel Refenes Solicitor
Counsel for the Independent Children's Lawyer:	Ms McConaghy
Solicitor for the Independent Children's Lawyer:	Ark Law Lawyers

SYC 6820 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR NAJM Applicant
AND:	MR B NAJM First Respondent MS FARHAN Second Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAMPTON J
DATE OF ORDER:	28 September 2022