Neal & Sheehy - [2021] FedCFamC2F 74

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISON 2)
Neal & Sheehy [2021] FedCFamC2F 74

File number(s): MLC 13993 of 2020

Judgment of: JUDGE BENDER

Date of judgment: 22 September 2021

Catchwords:
FAMILY LAW – parenting – Parties’ Applications for parenting orders with respect to the two children aged 13 and 10 – where the Applicant is the Paternal Grandmother and the Respondent is the Mother – the Paternal Grandmother lives in Town E and the Mother lives 350 kilometres away in City B – the Mother and Father separated in 2011 due to extreme violence perpetrated by the Father – the children lived in the Father’s primary care from separation to September 2020 and spent very limited time with the Mother – the oldest child made allegations of sexual abuse by the Father in September 2020 and the Father committed suicide shortly thereafter – the children have lived in the Paternal Grandmother’s primary care since 2020 – the children have never lived in the primary care of the Mother save for the short time between their birth and the separation of the Mother and Father

HELD – Mother have sole parental responsibility for the children – children live with the Mother – children spend time with the Paternal Grandmother for the first half of each school term holidays, for two weeks in the long summer vacation and for one weekend each term in City B

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 64B(2), 60CC(2), 60CC(3), 61DA, 65DAA

Cases cited:
AMS v AIF (1999) 199 CLR 160

U & U (2002) 211 CLR 238

Division: Division 2 Family Law

Number of paragraphs: 229

Date of last submission/s: 26 August 2021

Date of hearing: 25-26 August 2021

Place: Melbourne

Counsel for the Applicant: Mr McLeod

Solicitor for the Applicant: Sam Mason Legal

Counsel for the Respondent: Mr Hall

Solicitor for the Respondent: Heinz Law
ORDERS

MLC 13993 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS NEAL

Applicant

AND:
MS SHEEHY

Respondent

ORDER MADE BY:

JUDGE BENDER

DATE OF ORDER:

22 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the children W born in 2008 (“W”) and X, born in 2010.
2.Commencing 27 September 2021 W and X live with the Mother.
3.The parties ensure that W and X take their belongings, including clothing and other personal items which they may require to the Mother’s residence upon the commencement of living with the Mother.
4.W and X spend time with the Paternal Grandmother as follows:
(a)for the first half of all school term holidays;
(b)for two weeks during the long summer holidays commencing the first Friday after New Year’s Day;
(c)for one weekend in City B during each school term as agreed between the parties in writing and failing agreement on a weekend nominated by the Paternal Grandmother on no less than 21 days’ written notice to the Mother, with the Paternal Grandmother to pay all costs associated with such time spent, including accommodation costs;
(d)such further and other times as agreed between the parties in writing (including by text message).

5.W and X communicated with the Paternal Grandmother by telephone and/or FaceTime as follows:
(a)each Sunday at a time agreed by the parties in writing and failing agreement from 5:30pm to 6:00pm with the Paternal Grandmother to initiate the call to W and/or X’s phone and the Mother to ensure W and X have their phones available;
(b)at all other times upon W and/or X’s reasonable request to do so.

6.The Mother forthwith to all such acts and things to engage W and X with C Psychology in City B.
7.Each party:-
(a)inform the other as soon as practicable of any serious illness or injury suffered by W and/or X, particulars of any treatment required or received by W and/or X, together with the name and address of the treatment provider and/or location at which W and/or X are a patient and any medical or other health practitioner involved with W and/or X and authorise such practitioner to discuss the treatment with the other party at their own cost;
(b)authorise any educational institution, sporting or other club attended by W and/or X, to discuss their progress with the other party and to obtain copies of all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to carers, at each party’s own expense;
(c)be at liberty to attend W and/or X’s parent teacher interviews separately or unless otherwise agreed between the parties;
(d)be entitled to attend all events to which carers are usually invited to for W and/or X including but not limited to at any educational institution, sporting or other club;
(e)keep the other updated, as soon as practicable, of their email address and contact telephone number and notify any change to their email address and contact telephone number forthwith upon any change occurring; and
(f)communicate with the other by text message, email and telephone in a polite and courteous manner regarding all matters pertaining to W and/or X.

8.The parties, their servants and agents be and are hereby restrained by injunction from:-
(a)Discussing the subject-matter of these proceedings; or
(b)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party;

in the presence or hearing of W and/or X or permitting any other person to do so.

AND THE COURT NOTES THAT:
A.The Paternal Grandmother and the Mother are encouraged to undertake joint counselling to improve their communication and capacity to work together for the benefit of W and X, such counselling being available at:
(a)D Counsellors; or
(b)such other private therapist found at the following link that offer a telehealth service:

B.If the Paternal Grandmother is able to travel to City B more than once each term to spend time with W and X or if W and X reasonably ask to see their Grandmother in Town E during the school term, the Court expects the Mother will facilitate that time taking place.
C.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 a pseudonym Neal & Sheehy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BENDER:
INTRODUCTION

This parenting matter is to determine whether the children W born in 2008 (“W”) and X born in 2010 should remain living in Town E with the Applicant who is their Paternal Grandmother or move 350 kilometres to live in City B with the Respondent who is their Mother.
W and X’s parents separated in May 2011 when their Father, Mr F Neal, took W and X and moved over 400 kilometres from where their Mother resided. Thereafter W and X lived with their Father and spent limited time with their Mother.
In September 2020 W disclosed to staff at her school that the Father had been sexually abusing her since December 2019. A report was made to the Department of Communities and Justice New South Wales (“DCJ”) and in September 2020, DCJ removed W and X from the Father’s care and placed them in the care of the Paternal Grandmother.
In September 2020 interim orders were made in the Children’s Court at Town G allocating all parental responsibility for W and X to the Minister.
In 2020 the Father died in a single vehicle accident. A note written by the Father was found and the accident was deemed a suicide. As a result of the Father’s suicide, W’s allegations were not able to be properly investigated and prosecuted.
In November 2020 at the request of DCJ a Parenting Capacity Assessment was conducted in relation to the Mother and her partner Mr H to determine their suitability to have W and X placed in the Mother’s care. The report released 30 November 2020 concluded:-
The assessor is of the view Ms Sheehy and Mr H will ably meet W and X’s need for a safe, stable, secure and reparative environment in the long term. Noting Ms Sheehy is the biological mother of the Children it does not appear that there are any impediments to W and X living with Ms Sheehy and Mr H.
In 2020 the Mother filed an application with the Children’s Court seeking the Court dismiss the proceedings and place W and X in her care.
On 4 December 2020 DCJ withdrew its application before the Children’s Court as they were satisfied the Mother was capable and willing to be W and X’s primary carer. Mr J from DCJ contacted the parties to make arrangements for the Mother to collect W and X from the Paternal Grandmother.
After being contacted by Mr J, the Paternal Grandmother sent the Mother a text that stated “please contact my solicitor with any proposals you have”.
On 5 December 2020, the Mother’s solicitors were advised by the Paternal Grandmother’s solicitors that the Paternal Grandmother wanted W and X to remain living with her and she would be seeking Family Law orders to that effect.
In 2020, the Paternal Grandmother filed an Initiating Application in the Local Court at Town K seeking orders for W and X to live with her. In 2020, the Magistrate ordered the Application be transferred to the Federal Circuit Court of Australia at Melbourne urgently. It is that Application that is now before the Court.
The Paternal Grandmother is seeking orders she and the Mother have equal shared parental responsibility for W and X, that W and X live with her and spend time with the Mother on the fourth weekend of each month, half of term holidays and for three weeks in the long summer vacation.
The Mother seeks orders that she have sole parental responsibility for W and X, that W and X live with her and spend time with the Paternal Grandmother in Town E for one week in each of the term school holidays, for two weeks in the long summer vacation and for one weekend each term in City B.
BACKGROUND
The Paternal Grandmother was born in 1961 and is aged 60 years. She is a health care worker. She lives with her partner Mr L in Town E, New South Wales. Town E is a country Town north-east of City M.
The Mother was born in 1987 and is aged 34 years. She is a Manager. She lives with her partner Mr H in City B. They have 2 children, Y born in 2013 and Z born in 2015.
The Mother was in a relationship with W and X’s Father from 2006 to 2011. At the time of separation the family was living in City N. It is the Mother’s evidence she was the victim of severe family violence throughout the relationship. In 2010, whilst pregnant with X, the Father held the Mother hostage with a knife to her throat. The incident ended when Police surrounded the house. The Father was arrested and convicted of assault with a weapon and was gaoled for seven months.
After the Father was released from prison, the parties reconciled. The Father undertook extensive anger management and counselling whilst in prison and promised he had changed. It is the Mother’s evidence that not long after the parties reconciled the Father resumed his aggressive and violent behaviour towards her. In paragraph 37 of her trial affidavit the Mother states: “I held very real beliefs that Mr F Neal would kill me”.
In 2011, X was christened. On the day following the christening the Father packed his bags and told the Mother he was moving in with the Paternal Grandmother in Town E and taking W and X with him. It is the Mother’s evidence she did not try to stop the Father leaving with W and X “out of fear of what he might do to me if I tried to stop him”.[1]
[1] Paragraph 38 of the Mother’s affidavit filed 9 August 2021.
The Mother immediately commenced proceedings under the Family Law Act1975 (Cth) (“the Act”). At that time the Mother was working full-time, had no family support around her and was paying off $60,000 of matrimonial debt. It is the Mother’s evidence that because of her circumstances she reluctantly agreed to final orders being made in 2012 in the following terms:
(c)The parties have equal shared parental responsibility for the Children.
(d)The Children live with the Father and spend time with the Mother as agreed, but failing agreement, as follows:
(i)At such time as the Mother elects provided that she gives the Father no less than 7 days’ notice by telephone or writing such contact shall take place at Town E in New South Wales;
(ii)The time spend with the Mother is to no (sic) be more than 3 days continuously and not more frequent than each alternate week;
(iii)When both Children reach school age, the Mother will be permitted to spend time with the Children for one half of any school holiday period provided she gives the Father no less than 28 days’ notice of her intention to do so;
(iv)From the time that the Children are of school age the restriction that the time spent with the Mother must take place in Town E referred is removed.
It is the Mother’s evidence that after the Final Orders were made she arranged her work schedule so that she worked nine days straight and had five days off so she could travel to Town E to spend time with W and X. It is 400 kilometres from City N to Town E.
The Father, W and X lived with the Paternal Grandmother and Mr L in Town E from 2011 to 2012. It is the Mother’s evidence that in May 2012 the Paternal Grandmother rang her to say the Father had assaulted her and Mr L and had moved to a bungalow at the home of the Paternal Grandfather in Town O, 80 kilometres west of Town E.
Whilst agreeing the Father, W and X moved to Town O in 2012, the Paternal Grandmother denies the Father assaulted her and Mr L. It is her evidence the Father moved to Town O because he was able to access independent accommodation for himself, W and X.
In 2013, the Mother and Mr H moved from City N to City B. City B is approximately 400 kilometres from Town O.
It is the Mother’s evidence that she tried to spend time with W and X each fortnight but the Father limited her contact with them and he would often refuse to let her speak to them on the phone.
It is the Paternal Grandmother’s evidence that after the Father, W and X moved to Town O, W and X spent time with her on most weekends until they started school. After that she saw them at least monthly fitting in with their weekend activities in Town O.
It is the Paternal Grandmother’s evidence W and X spent time with her during most school holidays.
It is the Mother’s evidence that when W and X reached school age they started spending half the school holidays with her. It is her evidence that as time passed, the Father began limiting W and X’s time with her and that from 2016 onwards they would only be allowed to spend time with her on average every second school holidays. The Father continued to prevent W and X from speaking to her on the phone.
In May 2014 the Father married a woman from country C named Ms P. In 2016 the Father, Ms P, W and X moved to Town Q in New South Wales directly opposite City R. Town Q is approximately 235 kilometres from Town E and 450 kilometres from City B.
The Father and Ms P Neal have a daughter named V who was born in 2016.
After their move to Town Q, W and X continued to see the Paternal Grandmother albeit less frequently than they had when living in Town O. This was because of the distance between Town Q and Town E and W and X’s weekend activities in Town Q.
In 2018/2019 the Father and Ms P separated as a result of the Father’s violence. Ms P and V relocated to Melbourne. W and X have spent very little time with V since.
In 2019 the Mother and her family attended W’s final primary school assembly and her school Christmas show. W then spent three weeks and X two weeks with the Mother and her family in City B in the 2019/2020 long summer vacation. The Mother’s evidence is she and the Father argued at changeover at the end of those holidays and the Father refused to allow W and X to spend time with her in the first and second term holidays in 2020.
The events of September 2020 that resulted in W and X coming into the Paternal Grandmother’s care are set out in paragraphs 3-10 of this judgment.
No interim orders were made for W and X to spend time with the Mother when the matter came before Town K Local Court in 2020. The Mother attempted to reach agreement with the Paternal Grandmother for W and X to spend time with her during the 2020/2021 long summer vacation. No agreement could be reached and they spent no time with the Mother until orders were made by the Court in 2021. The Paternal Grandmother did not facilitate regular telephone communication between the Mother, W and X during this time.
The matter first came before this Court in 2021. Orders were made for an urgent s11F Child Inclusive Conference on 27 January 2021.
In the Child Inclusive Memorandum to Court prepared by Family Consultant Ms S, W is described as follows:-
15.W’s (12) engagement with the writer was unusual. W showed no reservations discussing very challenging topics with the writer and listed a number of “bad things” that had happened to her in 2020. The “bad things” included starting high school, her step-mum leaving, her father “became a paedophile”, her cat isn’t allowed in the house, Covid 19 restrictions, her friendship group breaking up after she left town and starting a new school. Interestingly W did not volunteer any information about the death of her father and subsequent placement with her paternal grandmother and did not raise these topics at all during the interview.
…
17.W stated she misses her mum and that the last time she saw her was Christmas 2019. W had positive regard for Ms Sheehy and stated she has only ever seen her mother on school holidays. W stated she would like to see her mother much more frequently and she noted no concerns for her safety or wellbeing in Ms Sheehy’s care. W stated she stays in contact with her mother via snap chat and Instagram and that this became much easier after Ms Sheehy purchased her a new phone last year.
18.W also noted no concerns for her safety or wellbeing in Ms Neal’s care however stated that Ms Neal has advised her that if the children stay in Ms Neal’s care that they will return to Town Q where they originally lived with Mr F Neal. W reported she really wants to return to Town Q as this is where her friends are and this is what will help her right now. W relies heavily on her friends to support her with her emotional needs and although she can trust Ms Neal, she doesn’t really talk to her about the worries she identified above.
22.W has experienced a number of challenging events in the past 12 months and she appears to be blaming herself for the circumstances she is now in. W was unable to identify any adults with whom she is able to discuss her worries and it may be that she has started to develop some maladaptive strategies to manage her emotional responses. W will benefit from immediate therapeutic supports to address her experiences of alleged family violence and sexual abuse and grief and loss. It may also be beneficial for W to undertake a mental health assessment prior to the implementation of therapeutic supports to ensure there are no underlying mental health concerns that may be manifesting as a result of her trauma experience and to ascertain the most appropriate level of therapeutic support. It would be appropriate for this assessment to be conducted face to face rather than via videoconferencing. Ms Sheehy has articulated a clear process for engaging supports for W, should she be placed in her care. Ms Neal was unclear as to the therapeutic supports she would be able to engage for the children and noted that the nearest therapeutic supports would be approximately 2 hours away in Town U NSW.

Ms S described X as follows:-
20.X (10) was only willing to speak to the writer if the writer promised not to ask her where she wants to live. X also expressed sadness at the events of 2020 and stated that moving to a new school and her dad dying were the worst parts of last year. X has made a few friends at school however she misses her old school friends and Town Q. X noted that Town E is a much smaller town than Town Q and that the children in Town E are not interested in the same activities as her.
21.X stated that she has no concerns in the care of either Ms Neal or Ms Sheehy however noted that Ms Sheehy’s home is noisy and her half siblings are annoying. She also stated she often feels homesick when she visits her mother but does not feel homesick at Nan’s place. X stated she would also like to see her mother, noting that she starts school next week but that she would be happy to see her before school starts. X would love to be able to see her mum every month if that was possible.
…
23.X appears to have limited understanding of her circumstances and it is unclear whether she has been impacted by the alleged family violence. Ms Sheehy stated that she has concerns that X has been exposed to the alleged sexual abuse of W while the children were living with Mr F Neal. X also misses her friends and appears to be confused as to her future direction which may explain her reluctance to speak with professionals.
Ms S concluded at paragraphs 24 and 25:-
24.Both girls have experienced significant losses over the past 12 months and this is compounded by their experience of alleged family violence and sexual abuse, and the limited contact they have with their surviving parent, Ms Sheehy. Although the children appear to have a close relationship with Ms Neal, it is unclear whether they can openly discuss their emotions with her and they currently have no therapeutic supports in place to assist them with making sense of their experiences. In addition to this, both girls are of an age where their social relationships are becoming increasingly important to them and they have both lost their established social networks since leaving Town Q. Both children report that they would be happier if they were able to return to Town Q to live with either their mother or their paternal grandmother.
25.It is unclear whether another change in their circumstances would be beneficial or detrimental to their emotional wellbeing however both children would significantly benefit from immediate therapeutic supports.
Under the hearing “Future Directions” Ms S stated:-
28.In light of the above the Court is likely to benefit from hearing evidence about Ms Neal and Ms Sheehy’s capacity to sustainably support a therapeutic treatment plan for the children and which of them is more likely to support an ongoing relationship with the other adult, especially given the children’s relationship with the paternal family.
29.Given the complexity of the issues identified in the context of this preliminary assessment, the court will benefit from a family report to ascertain the most suitable long term live with arrangements for the children.
30.The court may also wish to consider whether an Independent Children’s Lawyer may be beneficial.
31.The court would benefit from information from the relevant Child Protection and Police records from both NSW and Victoria with regards to allegations of family violence between Mr F Neal and Ms Sheehy and Ms P Neal and allegations of sexual abuse of W.
32.Both children would benefit from the engagement of immediate therapeutic supports with the court to consider whether W may require a formal psychological assessment to determine whether any specific therapeutic interventions are required. Contingent on Co-Vid 19 constraints, and ideally, such support to occur in-person rather than via video/phone conferencing. (Headspace City B or Families M City N (Town U)).
33.Contingent on any findings made by the Court which may result in the children continuing to live with Ms Neal in the interim, both children have identified that they would like to spend more time with their mother and the children would benefit from spend time arrangements that are clearly articulated and adhered to. In this respect spend time could commence immediately with an incremental increase in time given the children have not seen Ms Sheehy for over 12 months.
On 28 January 2021 interim orders were made by consent which provided:-
1. The parties’ interim applications be adjourned to 24 March 2021 at 9.30am.
2.Until further order the children W born in 2008 and X in 2010 live with the Paternal Grandmother.
3.Paragraphs 3 of the Orders of 29 March 2012 be discharged.
4.The Children spend time and communicate with the Mother as follows:
(a)From 5.00pm on Thursday 28 January until 5.00pm on Thursday 4 February 2021;
(b)From 6.00pm on Friday until 5.00pm on Sunday commencing 19 February 2021 and each alternate week thereafter;
(c)By internet video calling (i) between 7pm and 8pm on Tuesdays, Thursdays and Sundays, and (ii) at such other times as the children may request; and (iii) for the purpose of this Order the Paternal Grandmother shall ensure that internet facilities are installed and available to facilitate this contact, and during any period of unavailability shall facilitate telephone calls on the same basis as specified above;
(d)For such further or other periods as may be mutually agreed pending further order.
5.Unless otherwise agreed changeovers occur at Shop C.
6.The Paternal Grandmother forthwith facilitate therapeutic counselling for both children on a face-to-face basis with Headspace in City M for W and an agreed counsellor in City M for X in accordance with the recommendations of the Family Consultant dated 27 January 2021 and that the Mother be permitted to participate in such counselling at the invitation of the counsellor.
7.The parties be at liberty to provide a copy of the s11F Counselling Memorandum to the children’s counsellors and to the children’s schools and to the paternal grandmother’s personal counsellor on a confidential basis.
8.The Mother retain shared parental responsibility for the children including decisions in relation to the children’s school enrolments, medical/health consultations and procedures.
9.The Mother be consulted in relation to decisions regarding the children’s education, health, medical procedures, that she be named as an emergency contact at the children’s school, be permitted access to their medical records and notified by the paternal grandmother of the children’s medical practitioner’s name and contact details and informed of any medical interventions affecting either child.
10.The Paternal Grandmother notify the Mother in writing at least 48 hours in advance if she intends to take the children interstate other than travel into Victoria.
11.The parties, their servants and agents be and are hereby restrained by injunction from:
(a) discussing the subject-matter of these proceedings; or
(b)abusing, insulting, belittling, rebuking or otherwise denigrating the other party;
(c)in the presence or hearing of the Children or permitting any other person so to do.
On 24 March 2021 further orders were made by consent which provided:-
4.        Orders 4(a) and (b) of the Orders made 28 January 2021 be discharged.
5.        The children spend time with the Mother as follows:
(a)From 6:00 pm on Friday until 4:30 pm on Sunday commencing 7 May 2021 and every third weekend thereafter;
(b)       In relation to school term holidays:
(i)For the Easter 2021 school term holidays, from 1:00 pm on Monday 5 April 2021 until 1:00 pm on Sunday 18 April 2021; and
(ii)For the remaining 2021 school term holidays, from 1:00 pm on the first Saturday of the school term holidays until 1:00 pm on the second Thursday of the school term holidays.
Orders were also made for the preparation of a Family Report which was made available to the parties in late May.
Since the making of those orders the living arrangements for W and X have been in accordance with the orders.
W and X are also engaged in ongoing therapeutic counselling.
THE EVIDENCE
The Paternal Grandmother
The Paternal Grandmother relies on her trial affidavit sworn 29 July 2021 and the affidavit of her partner Mr L sworn 2 August 2021. The Paternal Grandmother and Mr L both gave vive voce evidence at the final hearing.
It is the Paternal Grandmother’s evidence that she believes it is best for W and X to remain in her primary care as it is with her that they have their closest bond and because both W and X have now settled into life with her. They are progressing well in their schools and are settled and established in their community.
The Paternal Grandmother describes W and X’s relationship with the Mother as “developing”. She observed that the Mother has only been a peripheral figure in the girls’ lives since she and their Father separated in 2011 and that for much of their lives they would only see her at best two or three times a year.
It is the Paternal Grandmother’s evidence that she is the female figure who has been the constant in W and X’s lives. This is particularly so for X. It is her evidence that X was only five months old when W and X came to live in her home and because the Father had a back injury it was she who was responsible for changing X’s nappy and meeting her physical needs as the Father was not able to lift X up.
It is the Paternal Grandmother’s evidence that prior to W and X starting school they spent at least every second weekend with her as well as time in most of the school holidays. After the girls started school, they would spend at least one weekend a month with her though this time did diminish somewhat when the Father, his then wife Ms P Neal, their daughter V, W and X moved to Town Q.
It is the Paternal Grandmother’s evidence that X has told her that she wants to keep living with her. X is hoping to stay at her current primary school and be school captain next year when she is in Grade 6.
It is the Paternal Grandmother’s evidence that when W and X initially came into her care, W was unsettled. She believes that W has now established a friendship group at her school, is fully engaged with her counsellor and is much happier.
The Paternal Grandmother was questioned about the Mother’s evidence that in the last six months, 49 of the 56 calls that she has made to W and X have not been answered. It is the Paternal Grandmother’s evidence that both W and X have their own mobile phones and iPads and the Mother calls W and X directly on their devices. It is the Paternal Grandmother’s evidence that it is a matter for the girls whether they have their devices charged and they answer their Mother as she believes they are old enough to be responsible for that communication. She also noted that the internet connection at her home can be unreliable although that has improved recently since she upgraded her internet service.
In her family report, the Report Writer Ms T observed the interactions between W, X and the Paternal Grandmother to be good-humoured but tense and strained throughout. She observed the Paternal Grandmother to become directorial and managerial and the girls grumpy, petulant and resistant to direction.
When questioned about these observations, the Paternal Grandmother did not agree that the descriptions by Ms T accurately reflected her interaction with W and X. She noted that by the time her observations with W and X took place they had had a very long day, they were tired and they had had enough of the process. She also observed that there was tension between W and X when she came into the room and that X subsequently explained to her that she was upset with W and perhaps a little jealous of her because she thought that in the observation with their Mother, W had more attention from the Mother.
It is the Paternal Grandmother’s evidence that if W were to come to her in the future and tell her that she wants to live with her Mother then she would respect W’s wishes and allow her to do so. It was not clear however whether she was suggesting that both girls would move to live with their Mother in the event this occurred or only W.
The Paternal Grandmother agrees that she and the Mother do not currently communicate well with each other and that they never developed a relationship when the Mother and her son were together or subsequently.
It is the Paternal Grandmother’s evidence that following discussions with her barrister on the day before the trial commenced that she was told the full details of the allegations of her son’s sexual abuse of W.
In the family report the Paternal Grandmother was reported as questioning W’s allegations of sexual abuse by the Father. When questioned whether she now believes W was sexually abused by the Father, the Paternal Grandmother indicated that now she has a full understanding of what W says occurred, she believes W was sexually abused by the Father. She indicated that W had never discussed this with her and she had not ever spoken to W about the abuse because when W and X were placed in her care she was advised by DCJ not to question the girls as there was an ongoing enquiry in relation to the matter.
The Paternal Grandmother is concerned that if W and X live with the Mother, the Mother will not support them having an ongoing relationship with her.
Mr L
It is Mr L’s evidence that he has been in a strong, secure relationship with the Paternal Grandmother for over 20 years.
He describes having a wonderful relationship with W and X and that whilst he is a relatively quiet person, they enjoy doing things together.
He describes W and X’s relationship with the Paternal Grandmother as a loving and caring one and that he and the Paternal Grandmother have embraced having W and X live with them. It is his evidence that their transition to living with them has been relatively easy as they already had friends in the area and their rooms set up and available to them because of the many years they had stayed with them.
The Mother
The Mother relies on her trial affidavit filed 9 August 2021. The Mother also gave vive voce evidence at the final hearing.
The Mother was given leave to rely on an affidavit sworn by Mr H on 19 August 2021. Mr H too gave vive voce evidence at the final hearing.
The Mother also relies on the affidavit of Ms E, independent assessor, sworn 29 June 2021 to which is attached the Parenting Capacity/Restoration Assessment conducted by Ms E for DCJ dated 30 November 2020. Ms E was not required for cross-examination at the final hearing.
The Mother readily agrees that the Paternal Grandmother has done a very good job in stepping in to care for W and X at such a difficult time and that what the Paternal Grandmother has gone through because of her son’s abuse of W and his subsequent suicide is something that the Mother would never want to have to face in her own life.
The Mother also agrees that the Paternal Grandmother and X’s relationship is more than the usual “grandmother-grandchild” relationship and that currently the Paternal Grandmother is X’s primary attachment.
It is the Mother’s evidence however that it is now long overdue and in W and X’s best interests that they live in her primary care.
It is the Mother’s evidence that she believes W and X will settle into living with her, Mr H and their younger siblings in City B. It is her evidence that over the last 12 months with W and X finally getting to spend regular time with her and her family in City B that they have settled into life in their home and into being part of a large, active and joyous family. She agrees that sometimes X complains about having to share a room with Y but says that this is part of any normal sibling relationship.
The Mother agrees that it is not going to be all smooth sailing if W and X move to live with her but she believes that they will have the appropriate supports in place in City B, including professional supports to allow them to work through and resolve any issues that may arise.
It is the Mother’s evidence that she believes that W and X are not prepared to say where they want to live as they do not want to hurt either herself or the Paternal Grandmother. It is her evidence however that both W and X are very conscious that this decision is being made and she believes that they are half-prepared that they will come into her care.
The Mother was asked why, when she and Mr H left City N, they chose to move to City B rather than somewhere much closer to where W and X lived which would have allowed her to spend more time with W and X.
The Mother explained that the towns proximate to where the Father was living with W and X were just too small to enable Mr H to establish a business so that he would be able to financially support their family. She also explained that, unlike the Father, she is not a small country-town girl and could not envisage living in a place with only 300 to 1000 people.
The Mother also explained that because of the severity of the violence that she suffered at the hands of the Father she was very reluctant to live anywhere proximate to the Father.
It is the Mother’s evidence that after she and the Father separated the Father made it very difficult for her to spend regular time and communicate with W and X.
When asked why she did not seek to enforce the spend time orders or make application for W and X to live with her, the Mother explained that it was both financially outside of her reach to do so and that her fear of the Father made it difficult for her to contemplate further litigation against him.
It is the Mother’s evidence that she has struggled and continues to struggle to find a way to build a relationship with the Paternal Grandmother, even on their common ground of W and X. When asked how she would improve her communication with the Paternal Grandmother in the future, it is the Mother’s evidence she would approach the Paternal Grandmother, tell her how the girls are going, ask how she is, start off slowly and try to build positive conversations with her.
The Mother was asked about her proposals for the time that W and X would spend with the Paternal Grandmother in the event she is successful in her application that they come to live with her. It is her evidence that she would propose holiday time for W and X in Town E and for the Paternal Grandmother to travel to City B during school terms in order to be able to spend time with them. It is the Mother’s evidence she believes this will enable W and X to maintain their relationship with the Paternal Grandmother and enable them to be fully involved in their life in City B including playing weekend sport and family activities.
The Mother was asked about the disruption to W and X that a move to City B would cause, particularly the disruption of the last 12 months. The Mother observed that W and X’s life has been one of disruption since birth as they have lived in Çity N, Town E, Town O, Town Q and again in Town E with the accompanying changes in school and community this has entailed. It is her belief that whilst there will be an initial adjustment if W and X move to City B, they will thereafter be in a settled and stable environment that will not change for the remainder of their childhood.
It is the Mother’s evidence that she and Mr H are about to commence building their new home. It will be a four bedroom home with a bungalow and will easily accommodate herself, Mr H and their four children.
Mr H
Mr H is the Mother’s de-facto partner. He and the Mother have been in a relationship since 2011.
Mr H has two adult children from a previous relationship, Ms S currently aged 20 and Ms R currently aged 18. Ms S and Ms R do not live with the Mother and Mr H but they spend regular time with him and the family.

It is Mr H’s evidence that he, Y, Z, Ms S and Ms R have a close relationship with W and X and that they are a much-loved part of their family.
It is Mr H’s evidence that when he and the Mother moved to City B, a move closer to where W and X lived with the Father was not a viable option for he and the Mother as the towns close to the Father were too small to support him successfully establishing his own business. It is his evidence that he has established a successful business in City B which has provided him and his family with financial security and that would not have been possible in a town any smaller than City B.
Miss T
Ms T is a Regulation 7 Family Consultant with the Federal Circuit and Family Court of Australia. In this matter she was engaged privately by the parties to prepare a family report.
Ms T’s family report dated 25 May 2021 is before the Court by way of the affidavit sworn by Ms T on 23 June 2021. Ms T adopted her report when giving her vive voce evidence.
When discussing the Paternal Grandmother, Ms T sets out in paragraphs 34 to 37 her discussions with the Paternal Grandmother about her experiences since W and X came into her care in September 2020:-
34. Ms Neal had found the transition to full time care of W and X a natural progression from her former relationship as they had spent a lot of time in her care throughout their lives. Since the transition she had had to engage with new technology and had gotten cross with W and X on occasion although had never resorted to physical discipline. She had felt children these days had a different attitude, more entitlement and awareness of their rights particularly when they had been asked to help around the house. Evidently when she had told W about how hard she had had to work as a child, W had questioned if she had been trying to make her feel guilty.
35. That both children had ‘dobbed’ on Mr F Neal to Ms Neal had caused Ms Neal to question W’s allegations against Mr F Neal of sexual abuse. She had been unclear about what the allegations had entailed and felt W had been negatively influenced by friends at her previous school. She had been advised not to talk of the abuse with either W or X with which she had complied. She had felt that W had not understood that what she had said to FAC’s was not confidential and had not understood that it had meant Mr F Neal had been investigated.
36. X had been described as easy-going, she one who bounced out of bed and was then ready for the day, she had been quite compliant with requests to do homework and help but W had been harder and had needed to be cajoled to undertake homework and attend school. Despite the fact that W had claimed to ‘hate school’ and appeared to not do any homework, at the parent – teacher interviews Ms Neal had been pleasantly surprised that all her teachers had given her glowing reports. Ms Neal believed W missed her friends from her previous school and had tended to play with X’s friends rather than make her own.
37. Ms Neal had witnessed and identified W’s anxiety when she had taken her to netball training, W had not been comfortable to participate but had assisted with X’s team. Ms Neal had described that W knew how to get her own way, she had threatened to ‘scream really loudly’ if she had not been taken home from the football. Ms Neal made the comment that ‘X mixes in but W doesn’t make the effort.’ Whilst Ms Neal had appeared to acknowledge W’s issues with anxiety she had not managed to understand her ‘manipulative’ behaviour as a strategy for anxiety management, she had believed it had been a wilful demonstration of how she had ‘gotten her own way’ and chosen not to make efforts socially.
Ms T indicated that the Paternal Grandmother expressed concerns about W and X having an ongoing relationship with her and the extended paternal family as well as their half-sister if they were to reside with the Mother as she believes that the Mother would not make the effort to facilitate those relationships.
Ms T sets out her discussions with the Mother about W and X’s relationship with her and her family at paragraphs 56 to 59 of her family report:-
56. Ms Sheehy’s relationship with W and X had developed since they had been having more regular contact and been able to interact on social media. W had interests in horror movies and the characters from these movies and was involved with an internet game called ‘FF Game” with her friends of which she had become a fan group member. The game is a survival horror story rated 12+ which evidently had created nightmares in some young teenagers. W had disclosed to Ms Sheehy that she had identified herself as nonbinary which Ms Sheehy had wondered if it had been a result of the sexual abuse she had allegedly experienced. Ms Sheehy had believed W’s allegation after she had initially wondered if it had been an expression of anger towards Mr F Neal. Ms Sheehy felt W had suffered from X being Mr F Neal’s favourite and more favoured by Ms Neal. W had wanted to be Ms Sheehy’s favourite and had been hypersensitive to attention that X attracted.
57. X had experienced a difficult few months after birth as she had been born ‘tongue tied’ so had been unable to feed properly. Once this had been rectified she had persisted with her high demands on parental attention. She had grown into a fun loving girl who had a tendency to be melodramatic and emotionally reactive. Generally she had been easy-going and relaxed.
58. Evidently both W and X had developed their sibling relationships with Y and Z so they could all interact amicably. Ms Sheehy had been confident these relationships would continue to evolve and develop the more time W and X spent in their family.
59. Ms S and Ms R, the older step-sisters had left home and were not likely to return to live within the family but Ms Sheehy and Mr H had planned a granny flat in the garage of their new home of which they were in the construction process which could cater for an extra person in the home in a semi-independent living arrangement. Ms Sheehy had experienced Ms S and Ms R as positive role models and support for all of the children.
Like the Paternal Grandmother, the Mother expresses concerns that if W and X remain in the Paternal Grandmother’s care, the Paternal Grandmother will not support her ongoing relationship with the girls. She bases this on the Paternal Grandmother’s past behaviour in not supporting her relationship with them whilst their Father was alive.
Under the heading “Adult Relationships” Ms T sets out her observations in relation to both the Paternal Grandmother and the Mother in paragraphs 62 to 66:-
62. Ms Neal and Ms Sheehy had not created an amicable relationship prior to the parental separation nor had one been established since. Their relationship appeared to be characterised by mutual animosity where neither party felt the other would respect their roles in W and X’s lives.
63. Ms Neal’s parenting style appeared to be based on more old fashioned values which valued compliance and respect in children. She had commented that children now were more aware of their rights and entitlements and had found W’s sometimes confronting manner challenging. She had found X’s ‘people pleasing style’ easier to manage.
64. Ms Sheehy had expressed strongly that communication and consultation with children were values that she upheld as she had felt this had been lacking in her childhood. Whilst Ms Sheehy had been able to interact with W and X on social media, play internet games and understand the technology they were engaged with, Ms Neal had not engaged at the same level.
65. Ms Neal had not demonstrated the ability to co-operate with Ms Sheehy despite having stated she would facilitate the relationship. For example, Ms Neal had adhered to the Court orders but had not acted in W and X’s best interests and negotiated with Ms Sheehy to alter the changeover day to reduce their travel prior to the family report interviews. This may have occurred as a result of rigid adherence to the court directive but it demonstrated an unwillingness to interact with Ms Sheehy.
66. Ms Sheehy had articulated a willingness to co-operate with Ms Neal but her previous experience of being unsupported by her could mitigate against this if not addressed in a proactive manner.
Ms T observed W and X to be confident and to engage easily. She noted that they are aware of the conflict between their Mother and Paternal Grandmother and that it involves where they were going to live. Both said they do not want to choose where they live and at different times gave contradictory opinions about what they thought is best for them.
Ms T noted that when seen together W and X expressed the fear and anxiety they had experienced when they had witnessed their Father being violent towards their stepmother. They told Ms T this was not something that they had been able to talk about with the Paternal Grandmother.
In relation to X, Ms T sets out the following in paragraphs 71 to 73:-
71. X had been confused as to why they had been taken to live with Ms Neal, she had thought it had been because W had run away, had gone to her friends instead of going home. X had appeared sad when she had spoken of this and had also mentioned that Ms Ms P Neal had left with V three years prior when V had been three years of age.
72. X expressed mixed feelings about where she had wanted to live in the future, “I wanna leave there (Town E) cos then I could be with Mum, but I wanna be with Nan and my friends at Town E.” X had experienced her peers at school in Town E to be focussed on rural preoccupations with which she had no affinity but she had cultivated a few friends who had played Minecraft and Roadblock with whom she could interact. She had experienced more time on devices at Ms Sheehy’s home which she had felt was positive. X had stated that “…if they (Ms Sheehy and Ms Neal) keep on arguing I will go to live with my friend.” She had been concerned that if she lived in City B that Ms Neal would ‘cry every day and be angry at Ms Sheehy.’
73. Ms Neal and the paternal aunt, Ms G Neal were people X had felt were good supports for her. She had reported a positive relationship with the paternal step-grandfather and had been evasive when asked to nominate people in the family she had gotten along best with. She had appeared acutely aware that her opinion could have an impact on the outcome of the Court process. X was appropriate in her levels of maturation and development for her age albeit had demonstrated a wariness in her communication around her opinions within the family.
Ms T’s observations of and discussions with W are set out in paragraphs 74 to 79 and are included in their entirety as they are most illuminating:-
74. W had utilised the session to explain issues that were important for her and had interacted easily. She had spoken about the guilt she had experienced; everything that had happened had been her fault as it had been her disclosure of sexual abuse to her friends at school that had triggered their removal from Mr F Neal’s care and perhaps had meant he had been angry or upset when driving which had then caused him to have the accident and die. This had caused her relocation away from friends, she could no longer have her cat BB inside and had had to attend a school where nearly everyone else was an idiot. Evidently she had established a small group of friends who were not idiots but she would prefer to live in a world of horror characters as they would all be her friends. She had not told X about her experience of sexual abuse and felt that she had known nothing.
75. At Ms Neal’s home W had identified her safe, happy place as under the doona with YouTube on her phone. It painted a picture of isolation and distraction from a reality which had probably been overwhelming.
76. W had acknowledged she had identified as nonbinary/transgender which she had only discussed with her friends and Ms Sheehy. W discussed Ms Sheehy’s household with affection and felt that she enjoyed Z the most as she had convinced him she was his brother named ZZ. Evidently Mr H was fun, he had not yelled at them and she and X referred to him as ‘HH’ as he had a beard.
77. She had little understanding of why she and X had not resided with Ms Sheehy after the parental separation, she had felt Ms Sheehy had not had a choice as Mr F Neal had ‘won the Court battle’ although he had not won the battle with Ms P Neal for V.
78. As the eldest, W had believed it had been her job to protect her siblings. This had meant if someone had bullied them she would ‘get their address and go and punch them out.’
79. W had eloquently stated that she had been unable to express what would make her happy “If I say what would make me happy, it will make others unhappy.” W impressed as a thoughtful, young person who had been overloaded with responsibility and had become precociously reliant on peers for support and assistance. She had not confided in adults as they had proved unresponsive, untrustworthy or too far away.
Ms T discussed her observations of W and X with each of the parties.
In relation to the observations of W and X with the Mother and Mr H, she describes an interesting, interactive drawing and writing game that was instigated by the Mother. She notes there to have been much enjoyment and laughter with everyone engaged in the game.
In paragraph 82 Ms T notes that X and W were comfortable with the Mother and Mr H, conversation flowed easily without evidence of tension or awkwardness, that the Mother provided direction and an appropriate activity for the session which had required minimal parental management due to the amicable, positive atmosphere in the room.
Ms T concluded the session had been enjoyed by all with equal participation, turn taking and engagement managed by both the Mother and Mr H.
In relation to the interaction between W, X and the Paternal Grandmother, Ms T observed the interaction commence with the Paternal Grandmother showing the girls photographs of the wedding cake from the ceremony she had attended on the weekend prior to the family report interviews.
Ms T notes that in the session the Paternal Grandmother became directorial, telling X and W what to do. When the Paternal Grandmother asked whether W had prepared her school bag ready for the next morning, X interjected, W initially refused to engage in the conversation and then the Paternal Grandmother and W then appeared to engage in what seemed to be a familiar pattern of negative repartee – the Paternal Grandmother: you won’t be having a story tonight because I’ll be packing your bag – W: you never give us stories – Paternal Grandmother: that’s because you’re never in bed in time.
When it became time to pack up, X became grumpy and petulant when W didn’t comply with requests that W assist the Paternal Grandmother. The Paternal Grandmother then attempted to elicit compliance from W by using the privileged position of who would get to sit in the front seat of the car. Ms T observed that whilst this tactic motivated W to comply with the Paternal Grandmother’s request she assist in packing up, it also appeared to spark resentment and competition between the girls.
After everything had been packed up Ms T observed a moment of softness and affection between W and the Paternal Grandmother. W seemed to collapse and rested her head on the Paternal Grandmother’s shoulder whilst they had a discussion around W’s favourite colour.
Ms T observed that by the end of their observation session with the Paternal Grandmother W and X had endured a long, anxious day and had a long journey ahead of them. She observed that W and X needled each other and that W actually appeared reluctant to finish the session and leave.
In summarising W and X’s session with the Paternal Grandmother, Ms T stated at paragraph 91:-
91. Ms Neal had appeared awkward in the session as if it had been unfamiliar for her to sit and play with the children. She had obviously been more comfortable in a supervisory role where normally she would presumably be busy with tasks of her own. Much of the session had had the theme of cajoling compliance from W and X of which X had been a willing participant but W had engaged in lowkey defiance and resistance at every opportunity. The session had been good humoured but had felt tense and strained throughout.
Under the heading “Evaluation”, Ms T makes the following observations:-
94. W particularly had developed a strong peer network for whom she had relied on for not just socialisation but emotional support as she had begun to navigate the complexities of the teenage developmental tasks of identity, belonging and individuation. At the age of 13 W should be gravitating towards peers for her socially based development but should still be dependent on her caregivers for her emotional needs. This somewhat precocious reliance and level of attachment on her peers makes more sense when viewed in the context of her allegations of sexual abuse. When her primary caregiver, Mr F Neal had become a threat and a danger she had eventually turned to her peers for guidance and support. She had not disclosed to Ms Sheehy, perhaps because of the distance and seeming powerlessness of her position and she had not disclosed to Ms Neal, perhaps for fear of not being believed.
95. X had seemingly had a stronger bond with Mr F Neal and had been more able to obtain from him her security and emotional stability. She had also enjoyed the constancy and comfort of W’s presence throughout her childhood. X’s challenges were the experience of the alleged family violence that had occurred between the stepmother and Mr F Neal, the loss of the stepmother and half-sister and her younger age, just five months old when the initial disrupted attachment occurred when the parents separated. This will have created vulnerabilities for her future emotional development that will need consideration in her future.
…
97. The death of Mr F Neal had created enormous challenges for W and X. For X this has been the loss of her primary attachment figure and had caused her to turn to the person closest to him, Ms Neal for comfort and support. For W the loss of Mr F Neal had created an overburdening of guilt and responsibility added to her own grief. W’s mental health will need to be professionally addressed and supported to enable her to recover from her experiences and reach her developmental potential.
98. Both W and X need be in an environment free from conflict and violence to facilitate their recovery and healthy future development.
99. Neither W nor X was able to express a preference for which home they wanted to reside in nor which caregiver they would choose. Both appeared acutely cognisant that their expressed opinions could cause hurt to others whom they loved and cared about. W and X independently voiced concern that Ms Neal would be upset if they lived with Ms Sheehy. For X this had been a compelling consideration as she had experienced Ms Neal perhaps as an extension of Mr F Neal, a link to him that she had not wanted to jeopardise. For W the overshadowing grief and guilt she had felt over the death of Mr F Neal may have acted as a trigger for anxiety over people’s vulnerabilities and mortality. Neither had expressed concern about Ms Sheehy’s welfare although both had been aware of her wishes for their presence.
100. The approaches and styles of Ms Neal and Ms Sheehy as caregivers were clearly demonstrated within the observation sessions. Ms Sheehy had been focussed on play, interaction, sharing and enjoyment whereas Ms Neal had been the observer, director, teacher, organiser and manager of behaviour. This divergence of style may be accounted for because Ms Sheehy had been the ‘holiday carer’ whilst Ms Neal had stepped into the fulltime care role or it may be a result of age, Ms Neal’s style could be viewed as a more traditional approach where parents had not engaged with children in a playful manner. Ms Sheehy demonstrated a collaborative, inclusive manner that she had developed and honed as a stepmother to teenagers and mother to younger children.
…
101. W and X had demonstrated familiarity and comfort with Ms Neal, interestingly they had both become less mature and responsible in her presence, they had reverted to a younger mode of operation when not facilitated in activity. This had also given rise to W’s ‘collapse’ when she had dropped her head onto Ms Neal’s shoulder at the end of the session. This show of trust and affection was indicative of the consistency of care Ms Neal had provided for her throughout her childhood. Of concern was the rebellious defiance demonstrated by W which had not been directly addressed by Ms Neal.
102.If Ms Neal’s proposal were to be endorsed by the Court W and X would benefit from the familiarity of the environment, the consistency and predictability of the established routines, continued mental health care sessions within established relationships, access to the paternal aunt and extended paternal family. The greatest risk inherent in Ms Neal’s proposals would be the endangering of W and X’s relationships with Ms Sheehy. Ms Sheehy had reportedly experienced Mr F Neal as obstructive to her parental relationship in the past and Ms Neal had demonstrated little capacity or inclination to be inclusive of Ms Sheehy in the children’s lives. Ms Neal had indicated willingness to be inclusive of Ms Sheehy in the future.
103. Of concern for W in the care of Ms Neal was the difference in beliefs about Mr F Neal, it appeared difficult for Ms Neal to entertain the idea that Mr F Neal had sexually abused W and perpetrated family violence. Living in the care of Ms Neal when she had not legitimised or believed W’s allegations and both children’s experiences of Mr F Neal could seriously compromise their mental health. Indicative of the limitations of Ms Neal’s relationship with W was W’s inability to disclose the sexual abuse or confide her gender identity issues.
104. If Ms Sheehy’s proposal were to be endorsed by the Court, W and X would benefit from respectful, collaborative parenting, emotionally supportive parental relationships, dynamic sibling relationships, a larger more diverse community and greater options for professional support. The risks for W and X in residing in Ms Sheehy’s care could be a diminishment in their relationships with Ms Neal and the extended paternal family, to be ‘overlooked’ in the busy household and not have sufficient personal space, to experience dislocation and further disruption to their lives from which recovery could be extended. Ms Sheehy had impressed as a parent who had thought considerably about her children’s emotional welfare and had been willing to address difficult issues. She had been aware of X’s concerns of room sharing and had expressed options to manage the bedroom situation differently in the future. W’s disclosure to Ms Sheehy about her gender identity was testament to the development of their relationship.

Ms T’s conclusion to her assessment is that the Mother, supported by Mr H, is best placed to provide the empathic, emotionally-attuned parenting from which W and X would benefit during the next stages of their development. She notes that in City B the Mother has easy access to professional supports that will facilitate W and X’s recovery from the significant traumas that they have experienced.[2]
[2] Paragraph 106 of Ms T’s report.
Ms T expressed the view that W and X’s move to the Mother’s care should take place as soon as practicable.
Ms T emphasised that the importance of the Paternal Grandmother’s role in the lives of W and X cannot be underestimated as she has provided them with loving stability and consistency throughout their childhood and that her ongoing support in the next stage of their lives will be essential for their future happiness.
Under the heading “Recommendations”, Ms T states:-
109. Ms Sheehy has sole parental responsibility for W and X.
110. W and X reside with Ms Sheehy in City B and spend time with Ms Neal for at least half each school holidays unless otherwise agreed.
111. W and X be engaged with psychological supports as soon as practicable. This could be undertaken through Headspace, City B for W, DD Community Health Centre for both W and X or through a mental health plan from a GP to access a private practitioner.
112. Ms Sheehy and Mr H to attend parenting skills programs such as Tuning into Teens and Life in the Blender though a local organisation such as Families EE, City B or Child and Family Services.
113. Ms Neal to continue to access psychological assistance through her local provider.
114. Ms Sheehy and Ms Neal to access family law mediation through a mutually agreed provider perhaps facilitated through remote access. An organisation such as Families EE, City B or D Counsellors could be of assistance.
When giving her evidence it was put to Ms T that W and particularly X had finally found some stability since moving to live with the Paternal Grandmother. Ms T’s evidence is:-
I think what has happened with the stability with Ms Neal – and she has stepped up and provided beautifully for the children – but… it is a pseudo-stability at the moment because they know that the decision has not been made. They’re not absolutely settled and putting down roots where they are.
Ms T was asked why she thought that W and X did not want to tell her or the parties where it is they want to live. Ms T responded:-
My understanding, particularly from W, and W influences X a lot, is that it’s dangerous to express your opinion because people get hurt, and the emotional overlay – “I don’t want to upset Grandma, I don’t want to upset Mum, I really just want” – and particularly W – “I want the judge to decide”. “I will just upset people with my wishes.
Ms T was asked whether she had formed an impression as to whether W and X did actually have a preference about where they wanted to live. Ms T responded:-
W definitely would like to live in City B with her mum. That was definitely the impression that I got. What she has in ..... is not enough for her. She wants – she misses Town Q because it was a bigger City. She wants to be in City B where there’s greater opportunity for her, and her bond with her mum is quite significant. She feels she can confide in her mum; she feels her mum is trustworthy. X was less clear, and I believe X would go either way.
Ms T was asked, whilst she had the genuine impression that W wants to live with her Mother, where X would fit in given she is a different age to W and perhaps has a different relationship with the Paternal Grandmother than her elder sister does. Ms T observed:-
X is in a very different position and her – which is why I wasn’t picking up as strongly from her where she wanted to live. My sense is she – she thought it would be a bit of an adventure to live at Mum’s. Could be a bit exciting and it could be really interesting and more things going on than at Town E, in City B, and with her big sister, of course, with W, but she was less sure, and certainly she was less sure about leaving Ms Neal.
It was put to Ms T by the Paternal Grandmother’s Counsel that if W and X remain in the Paternal Grandmother’s care there would not be a major adverse impact on them. Ms T did not agree with that proposition and stated:-
My concerns are particularly with W, but she – her relationship with her grandma is very different to her relationship with her mother, obviously. My sense of her relationship with her grandma is that it would be a great relationship with a grandparent, but for somebody who she feels can understand her and does understand her, and can respond to her emotionally and with empathy, I think she turns to her mother, and I think that’s her relationship with her mother. But to not have that from full-time care and to have some – to have full-time care coming from somebody who she doesn’t feel understood by, I think it would jeopardise her emotional wellbeing.
Ms T also highlighted that a matter of real importance for her was W had confided her exploration of her gender identity with her Mother which for a 13-year-old girl is a very big issue. She said this speaks volumes of her relationship with her Mother and her relationship with her Grandmother as it was her Mother she confided in and not her Grandmother.
Ms T was asked whether the risks to W and X that a change of residence from the Paternal Grandmother to the Mother would entail, including them adjusting to living with two younger siblings, and changing their schools and psychologists is outweighed by the detriment to them if they do not move. Ms T was also asked what that detriment is and why she drew the conclusion in her report that the best outcome for W and X was to move to live with their Mother. Her evidence is:-
The big difference for the children from residing with Ms Neal or residing with Ms Sheehy is the quality of the relationship. The relationship that I saw in the room in observation was a completely different approach to parenting. Ms Sheehy – Mum – impressed with her tuning in, her capacity to join with the children, and manage the session with play, with humour, with what I would call attunement – tuning in to where the children were at, at the time, whereas Ms Neal had a much more traditional parenting approach, which was to not join but to sit back and be a bit more of a direct and trying to achieve compliance and – in a teasy way. As I outlined in my observation notes, it was a very different feel to the session than the one with Mum.
The Paternal Grandmother’s evidence that there was tension between W and X when she came into the room for her observation session with her and that was because of something that had happened whilst W and X were with the Mother which had made X jealous was put to Ms T. Ms T answered:-
I certainly didn’t notice anything in the session with Mum that put W and X at odds with each other. That was not something I picked up on. My sense of them being at odds with each other was that it occurred within the session with…Ms Neal.
Ms T was asked why she recommended that W and X should immediately move to live with the Mother rather than waiting until X finishes Grade 6 and has had the chance to be school captain, something she is very hopeful of being able to do. Ms T opined:-
It seemed to me the children were living in limbo. They were living in the conflict, and the sooner it was resolved for them and they could start to live their lives in a settled way, the better they would be.
Ms T was asked what would happen if orders were made as recommended by her and it did not work. She responded:-
This is where the relationship between Mum and Grandma needs to really step up because if Mum and Grandma are in – in agreement, then I think it will work. If there’s agreement between these girls’ primary carers, which is what they both are now, it – it will work because Grandma will be supporting them from a distance and Mum will be supporting them in situ.
Ms T was then asked whether, given the parties’ current poor relationship and the distress and disappointment one of them is going to feel as a result of the decision of the Court, the Mother and Paternal Grandmother will be able to put aside their feelings for the benefit of W and X. Ms T opined:-
I think that if both parties understand that both girls need both of them in their lives, I think if they can actually, really understand that, then they can put aside the animosity… I will – will have a vote of faith in both of them. Yes. I believe they can, because they both love these girls very much. They do.
Ms T reiterated her belief that the Mother and Paternal Grandmother would benefit from counselling to assist them to improve their relationship and to redirect their focus on developing a relationship that allows them both to support W and X.
The Mother’s proposal for the time that W and X would spend with the Paternal Grandmother in the event she was successful in her application for the children to live with her was put to Ms T. Ms T was strongly of the view that W and X need to spend time with their Grandmother in each of the school holidays and that it would be positive for W and X if their Grandmother came to City B to see them and to have an opportunity to participate in their life in City B.
THE LAW
Best interests of the child
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 64B(2) of the Act sets out the meaning of parenting order as follows:-
(2)A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live (there is no automatic requirement for a child to live with the oher parent in the event of the death of a parent who has had such an order made in their favour – s.65KA);
(b)      the time a child is to spend with another person or other persons;
(c)      the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)      maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
To determine what is in the best interests of the child, the Court must consider the matters set out in s.60CC(2) and s.60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties proposals or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests. They are as follows:
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
The parties in these proceedings are not both W and X’s parents. They are their Paternal Grandmother and Mother.
The importance of W and X maintaining a meaningful relationship with their Mother and the Paternal Grandmother is not in dispute and any orders made must ensure that W and X’s relationship with the two most important adults in their lives is ongoing and supported.
Section 60CC(2)(b): the need to protect the child from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This subsection is not relevant to this matter.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interests. Each of the matters set out under that subsection will be considered in turn where applicable in this matter.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Both W and X refused to tell Ms T who they want to live with. This is because W and X do not want to hurt either their Mother or Paternal Grandmother.
Ms T noted both W and X to talk about positives in relation to living with either of the parties in these proceedings.
It is the Paternal Grandmother’s evidence that X has told her she wants to stay living with her.
It is the Mother’s evidence that she has deliberately not asked W and X where they want to live as she does not want to put them under the pressure of thinking that they have to decide this issue.
It is Ms T’s evidence that she believes that W in particular has a strong preference to live with her Mother in City B. W wants to be in City B where there is greater opportunities, W’s bond with her Mother is significant and she feels that she can confide in her Mother, having done so about her gender identity.
Ms T made the observation that X is much less sure about where she wants to live which is understandable given she has a very close relationship with her Paternal Grandmother.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparents or other relative of the child)
W and X have a close and loving relationship with the Paternal Grandmother. She has been a constant presence for the entirety of their lives and has provided them with care, comfort and most recently a home throughout what has been a tumultuous and difficult life to date.
X in particular has a very close relationship with her Grandmother. The relationship is described as being something more than the usual grandparent-grandchild relationship.
W also has a very loving relationship with her Grandmother. Ms T however describes their relationship as being more like a grandparent-grandchild relationship and perhaps not as close as the one that X has with the Paternal Grandmother.
The Mother has been a somewhat distant figure in W and X’s lives until relatively recently.
The Mother and W and X’s Father separated when X was only five months old. The Father moved 400km away from the Mother, taking W and X with him.
Despite orders that made provision for W and X to spend regular time with the Mother, geography and the Father’s undermining of their relationship with the Mother meant that W and X only spent time with their Mother at best two or three times a year until very recently.
In the last 12 months, W and X’s relationship with their Mother has finally had an opportunity to develop and grow and their relationship is deepening.
Ms T’s observation of W’s relationship with the Mother is that it is secure and safe and that it is with her Mother that W now feels confident to discuss and disclose intensely personal matters such as her gender identity.
W and X have positive relationships with the partners of the Paternal Grandmother and the Mother.
W and X are also developing their relationships with their half-siblings Y and Z, the children of the Mother and her partner Mr H.
W and X have a younger sister V born of the subsequent marriage of her Father and Ms P Neal. Ms P Neal separated from their Father as a result of his violence towards her in or around 2018/2019 and they have had very limited contact with their little sister since that time.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken or failed to take the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
The Paternal Grandmother is critical of the Mother’s lack of involvement in W and X’s lives after she and the Father separated. It is the Paternal Grandmother’s evidence that she does not believe that the Mother made sufficient effort to spend time with W and X, noting that she only very rarely visited W and X where they were living despite having orders that permitted her to do so.
It is the Mother’s evidence that W and X’s Father prevented her from spending time with the girls and also made it nearly impossible to have regular electronic communication with them.
It is the Mother’s evidence that because of the extreme violence that she experienced in her relationship with the Father, she was genuinely frightened to pursue her time with W and X in the face of his resistance. She was also reluctant to travel to where he lived in order to spend time with W and X.
The question of the Mother’s limited visits to where W and X were living and the suggestion that she had never prioritised living closer to them was discussed with Ms T. Ms T made the observation that for the Mother, living closer to W and X would have caught her in a real bind because of the horrific family violence she experienced at the hands of the Father. She observed that for the Mother to move closer to the source of that great trauma to her would not have been great for her mental health or security. Ms T made the observation that the trauma associated with family violence at the level the Mother endured is significant and in those circumstances she is not critical of the Mother for not moving closer to where the Father lived with W and X or more forcefully pursuing time with them in the face of the Father’s opposition to that time taking place.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his parents; or
(ii)any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living

A move to City B will involve considerable change in W and X’s current circumstances. They will move 300 kilometres from their Grandmother’s home to that of their Mother who they have never lived with. They will live with their younger siblings Y and Z. They will again change schools and they will need to be linked in with new psychologists.
Living 300 kilometres from their Grandmother will not allow W and X to spend frequent regular time with her. X in particular has a special relationship with her Grandmother and will undoubtedly miss her.
W and X have previously moved away from their school, friendship group and from living in close proximity to their Grandmother. From 2012 to 2016 they lived in Town O only 80 kilometres from their Grandmother. They then moved to Town Q which is approximately 230 kilometres from where their Grandmother lives. After this move they saw much less of their Grandmother. They however maintained a close and loving relationship with her.
The difference between W and X’s move away from the Paternal Grandmother in 2016 and a move now is they have been living with her for the last 12 months following the awful events of September 2020 and have had her love and support as they have dealt with the challenges those events have presented.
The Mother is fully aware of the important of W and X’s relationship with the Paternal Grandmother and it is her evidence she will ensure W and X spend time and regularly communicate with the Paternal Grandmother so they can maintain their close and loving relationship with her.
The Mother is also aware that if W and X move to City B to live with her they will need not only the support of herself and her partner whilst they adjust to their new life in City B, they will also need professional assistance. The Mother’s evidence is he has spoken to a psychologist in City B who will be able to assist W and X if they move to live with her.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live over 300km apart and it is approximately a three and half hour drive between City B and Town E.
This distance creates considerable practical difficulties in enabling W and X to spend regular and frequent time with the party that they are not living with.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
Both parties are able to appropriately care for W and X physically, intellectually and emotionally.
Whilst the Paternal Grandmother now says she believes that her son sexually abused W as a result of the detailed information provided to her by her Counsel the day before the final hearing, the documentation from the DCJ, the comments made by W as part of the s.11F Child Inclusive Conference the information in the Family Report and the Mother’s trial affidavit clearly set out the details of the Father’s abuse. That the Paternal Grandmother has only just acknowledged that W was sexually abused confirms the Paternal Grandmother did not initially accept the abuse occurred. This is further borne out of the Paternal Grandmother’s discussion with Ms T about the abuse which is detailed in paragraph 87 of this judgment.
This was perhaps why W did not receive psychological and counselling support when she first went into the Paternal Grandmother’s care. However W has now been engaged with the appropriate assistance for some time.
What is more telling is that W has been unable to discuss her abuse with her Grandmother as well as other intensely personal things such as her gender identity and it is the Mother with whom W confided.
Neither W nor X felt able to discuss the Father’s violence towards their step-mother Ms P Neal with the Paternal Grandmother. In paragraph 35 of the Family Report Ms T notes that the Paternal Grandmother referred to matters raised by W and X about their Father as them having “dobbed” on their Father.
That the Mother and Paternal Grandmother have different parenting styles is not a criticism of either of them but rather a reflection that they are from different generations and how they each parent.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
Whilst it is stating the obvious, the Paternal Grandmother is W and X’s grandparent. The Mother is their parent. There is a generational difference between the Paternal Grandmother and the Mother which is perhaps best reflected in their parenting styles and their relationship with W and X.
This does not mean that this is something that will determine the outcome of this matter or that one is better than the other. Rather it is a factor in the parties’ respective approach to how they care for and parent the girls.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parties are both competent, caring and responsible carers who genuinely have the best interests of W and X at heart.
The Paternal Grandmother has been a constant, reliable and caring presence in W and X’s lives and stepped up 12 months ago when she took W and X into her home in the most awful of circumstances.
The Mother loves her daughters deeply and her previous somewhat limited involvement in their lives was not of her choosing but a reflection of the very violent relationship that she had with their Father and his resistance to nurturing W and X’s relationship with her.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
The Father’s violence towards the Mother is well set out in this judgment.
W and X were exposed to the Father’s violence to their stepmother and that violence was the reason their stepmother and Father separated and why they no longer see their younger sister.
W was sexually abused by her Father.
The impact of the Father’s behaviours has permeated W and X’s lives to date as it has the parties before the Court.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is very apparent that W and X have had a disrupted and unstable life to date. W and X have had five changes of residence, W has had four changes of school and X has had three. Their relationship with their Mother has been disrupted and their subsequent relationship with their stepmother and little sister V was abruptly halted when their stepmother and V left the Father as a result of his violence.
Given their lives to date, W and X desperately need certainty, stability and continuity of love and care. They therefore need that there be no further litigation or arguments between the two people they love the most, their Mother and Paternal Grandmother.
It will therefore be vital that the determination of this matter sees an end to litigation between their Mother and Grandmother so that W and X have that certainty and security going forward.
Section 60CC(3)(m): any other factor or circumstance that the Court thinks is relevant
It is the clear evidence of Ms T that W and X really need their Mother and Grandmother to work together whatever the outcome of this case is. She quite properly describes them both as now being the girls’ primary carers and makes it very clear that any orders the Court make will work if both parties are supportive of those orders and work together to ensure that they do.
To this end, Ms T suggests that it would be sensible for the Paternal Grandmother and the Mother to undertake counselling to assist them both to communicate with each other. They are the two most important adults in W and X’s lives and it is vital they establish a co-operative relationship that enables W and X to have a relationship with both of them.
Equal shared parental responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parties in this matter are not both the parents of W and X and therefore s.61DA is not applicable and the presumption of equal shared parental responsibility does not apply.
This does not mean however that the Court cannot make an order for equal shared parental responsibility between a parent and a party who is not a parent of the child as s 64B(2)(c) of the Act allows.
In this matter, the parties are in agreement that if W and X remain living with the Paternal Grandmother then the Paternal Grandmother and the Mother should have equal shared parental responsibility for them.
The Mother is seeking an order that in the event the Court orders W and X to live with her, she have sole parental responsibility for them.
It is the Mother’s evidence that such an outcome is both practical and realistic given that she and the Paternal Grandmother are unable to communicate with each other constructively at this time.
It is the Mother’s position however that if orders are made as sought by her they should also include provision for the Paternal Grandmother to be kept appraised of the major decisions in the girls’ lives, any health issues that arise and for her to receive the relevant information from the girls’ schools. She seeks orders be made that enable the Paternal Grandmother to attend parent-teacher interviews, school concerts, sporting events and other activities when she is able to do so.
Counsel for the Paternal Grandmother did not make submissions in relation to parental responsibility in the event orders were made for W and X to live with the Mother.
Consideration of Equal or Substantial and Significant Time
Section 65DAA of the Act requires the Court to consider children spending equal time or significant and substantial time where there is an order that their parents have equal shared parental responsibility for them.
Like s.61DA of the Act, this section applies to orders relating to parents and as such is not one that is binding on the Court when looking at the orders made that are in the best interests of W and X.
This does not mean however that the Court should not consider making such orders if they are in W and X’s best interests.
The reality in this matter is that the distance between the parties is such that it is not practicable to make orders for W and X to spend either equal or significant and substantial time with the party that they are not living with.
CONCLUSION
This is an incredibly sad case. W and X had their lives completely turned upside down as the result of the actions of their Father.
After their parents separated in 2011 the Father moved with W and X 400 kilometres from where their Mother lived. They then lived in their Father’s primary care and spent limited time with their Mother as a result of the impact of the Father’s violence towards the Mother during their relationship and his failure to support W and X’s relationship with her.
When their parents separated W and X initially lived with their Father and Paternal Grandmother for 12 months in Town E. They then moved with their Father to Town O some 80 kilometres away from the Paternal Grandmother’s home. Their Father married in 2014 and he and his wife had a daughter, V in 2016. In 2016 W and X again moved with their Father, stepmother and younger sister to Town Q which is 150 kilometres away from Town O. In 2018/2019 their Father’s relationship with their stepmother broke down as a result of his violence and their stepmother and sister moved to Melbourne. In September 2020 W disclosed that her Father had been sexually abusing her. DCJ immediately stepped in. Five days later their Father committed suicide in a single car accident.
The Paternal Grandmother who had been a constant presence in W and X’s lives since 2011 stepped in and they moved into her care, again having to leave their home and school. They returned to Town E.
In November 2020, DCJ conducted a Parenting and Capacity Assessment of the Mother and her partner and assessed them to be suitable and appropriate carers for W and X. Because of this DCJ withdrew their involvement with the family three months after the death of the girls’ Father, anticipating that arrangements would be made between the Paternal Grandmother and the Mother for W and X to live with their Mother.
The Paternal Grandmother, believing that it was in W and X’s best interests that they remain with her, immediately instituted proceedings under the Act seeking orders be made for W and X to continue to reside with her and spend time with their Mother. The Mother filed a Response seeking W and X live with her and spend time with their Grandmother. It is this application that is before the Court.
W and X love both their Grandmother and their Mother and were not prepared to express a preference to the family report writer about where and with whom they wanted live. They knew to do so would hurt either their Grandmother or their Mother. They told the report writer they wanted the Judge to decide.
In cross-examination the report writer Ms T expressed the opinion that the strong impression she formed was W wants to live with her Mother in City B. City B is a much larger town that would afford her greater options and opportunities and her bond with her Mother is such that she is able to confide in her Mother, something she cannot do with the Paternal Grandmother.
X has a special relationship with her Grandmother. The Mother acknowledges that at this time X sees her Grandmother as her primary carer. It is the Paternal Grandmother’s evidence that X has told her that she wants to keep living with her. It is the Paternal Grandmother’s evidence that X is now settled in Town E, has made friends at school and is hopeful of being school captain next year when she is in Grade 6.
Ms T observed X to be much more ambivalent than W is about where and with whom she wants to live. Ms T noted this reflects the close relationship she has with her Grandmother. X has some trepidations about how she will adjust to living with her Mother, her Mother’s partner Mr H and her two younger half siblings, Y, 8, and Z, 6.
It is Ms T’s opinion that if W and X remain living with the Grandmother W in particular will struggle. She opined that W’s relationship with her Grandmother is very different to her relationship with her Mother. Whilst she has a very good grandmother-granddaughter relationship with the Paternal Grandmother, it is not to her that she turns for understanding and empathy. She turns to her Mother. Ms T’s example of the difference in the relationship W has with her Mother as compared to her Grandmother is it was with her Mother that W discussed her questions about her gender identity and not her Grandmother.
It is Ms T’s evidence that to require W to live full-time with someone who she doesn’t feel understood by would jeopardise her emotional well-being.
The Paternal Grandmother argues that it is not in W and X’s best interests to disrupt the security and stability that they are finally establishing in her home. It is her evidence that the girls are now happy and are starting to again live their lives. She says that both W and X are now well settled at their schools and are making friends.
The Paternal Grandmother argues that W and X have a strong, enduring and long-standing relationship with her and whilst they have finally been afforded the opportunity to spend regular time with their Mother over the last 9 months, their relationship with her is only developing. She argues it is an unknown whether W and X’s developing relationship with the Mother will survive the pressures of living in the full-time care of the Mother as unlike herself, the Mother has never been the full-time carer of W and X.
It is the Mother’s evidence that she believes W and X have an established and secure relationship with her and they will thrive in the care of herself and her partner. She argues that City B will offer the girls much greater opportunities than are available to them in Town E.
The Mother accepts that the move to her care will not be without some difficulty for W and X whilst they adjust. It is her evidence that the supports that W and X will have both within the family and professionally will allow them to work through any problems that may arise. She argues W and X’s long-term happiness and future will be safe and secure if they live with her in City B.
Having considered the parties’ evidence and the evidence of the report writer I am of the view that W and X’s best interests are met if they live with the Mother in City B.
This finding in no way should be seen as a criticism or an indictment of the love, care and nurturing that has been provided by the Paternal Grandmother throughout the entirety of W and X’s lives or that she is a less important figure to them because she is their Grandmother and not their parent.
The basis for this decision is the clear evidence of the strength of the relationship that W in particular has with her Mother and the potential to jeopardise her emotional well-being if she isn’t living with the carer in whom she feels most confidence to confide.
X’s special relationship with her Grandmother is acknowledged. However, the Mother’s evidence clearly indicates that she understands the special relationship X has with her grandmother and that X will be torn by moving away from her Grandmother. I am satisfied that the Mother has the requisite empathy, insight and parenting skills to assist X to manage any distress that she may feel when missing her Grandmother.
The remaining questions that need to be determined are the question of parental responsibility, the time that W and X should spend with their Grandmother in Town E and when they should move to live with the Mother.
I am of the view that the current relationship between the Mother and the Paternal Grandmother is such that it would be very difficult for them to be able to make joint decisions for W and X. Given that W and X will be living with the Mother it is she who should have sole parental responsibility for them.
Given the close relationship that W and X have with the Paternal Grandmother, it will be very important that she is kept abreast of all that is happening in their lives including their health, education and activities. Accordingly orders will be made that will require the Mother to keep the Paternal Grandmother informed of those developments and the decisions made. The orders will also allow the Paternal Grandmother to speak to W and X’s treaters, their schools and to be as actively involved in their activities as the distance between the parties’ homes allow.
The Mother’s proposal is that W and X spend time with the Paternal Grandmother in Town E for half of the term holidays, two weeks in the long summer vacation and for one weekend in each term in City B.
The time that W and X can spend with the Paternal Grandmother is severely impacted by the distance between Town E and City B.
When W and X lived with their Father in Town Q it is the Paternal Grandmother’s evidence she spent time with W and X during school holidays and that during the school terms she visited W and X in Town Q, noting they had sport and other activities appropriate to school age children. Her evidence was when they lived in Town O she visited them approximately once a month but her visits were less frequent when they moved to Town Q because of the greater distance.

The Mother’s proposal for the time W and X spend with the Paternal Grandmother is not significantly less than the arrangements that were in place when W and X lived with their Father in Town Q. W and X clearly maintained their close and loving relationship with their Grandmother when living in Town Q.
W and X’s relationship with the Paternal Grandmother is a very close one and is very important to them. Whilst I will make orders as proposed by the Mother, it will be very important that if the Paternal Grandmother is able to travel to City B to see W and X more than once each term the Mother enables them to spend that time with the Paternal Grandmother. Further if W or X should reasonably ask to visit the Paternal Grandmother in Town E outside of the school holidays, the Mother must accommodate these additional visits. This may be particularly important for X given her special relationship with her Grandmother.
W and X will also need to be able to communicate regularly with their Grandmother. Orders will be made that such communication take place at all reasonable times as requested by W and X. In addition, there should be a regular Sunday night call when the Grandmother rings to speak to them. Given that both W and X have their own mobile phones and iPads, that communication should be able to flow without difficulty.
The final matter for determination is when W and X are to move to City B. It was suggested by Counsel for the Paternal Grandmother that if the Court was persuaded that an order should be made for W and X to live with their Mother then that move should not take place immediately but should be delayed until X finishes primary school at the end of next year.
The Mother is seeking that if orders are made for W and X to live with her then that occur immediately as W and X have been living with uncertainty for too long.
It was the very clear evidence of Ms T that if there is to be a change of residence it should take place straight away as W and X have been living in limbo for the last nine months waiting for this decision to be made. It is her evidence they both need the certainty of knowing where they are living so that they can finally put down roots and be confident in the knowledge that this is where they are to live going forward.
I am in complete agreement with the Mother and the report writer in this regard. W and X have been living in uncertainty now for 12 months. Now that the decision has been made they can genuinely settle in their home knowing this is where they will be living. They also need to be able to start establishing themselves in City B, attend their new schools, start making friends, explore extra-curricular activities, engage with their new counsellor and fully integrate with the maternal family now and not in 15 months’ time.
I am in no doubt that the Paternal Grandmother will be devastated by this decision and that it will be very difficult for her to support W and X’s move to their Mother.
However, as was so eloquently said by Ms T when asked what would happen if a change of residence didn’t work for W and X:-
If there’s agreement between these girls’ primary carers, which is what they both are now, it – it will work because Grandma will be supporting them from a distance and Mum will be supporting them in situ.
Ms T suggested that the Mother and Grandmother would be assisted by counselling to help them reach this agreement. Whilst I will not make an order requiring them to undertake counselling, it is strongly recommended that they consider such a step. There will be a notation to the orders recommending the Mother and Paternal Grandmother attend counselling and list possible organisations that might be able to assist them.

I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bender.
Dated: 22 September 2021

File number(s):	MLC 13993 of 2020
Judgment of:	JUDGE BENDER
Date of judgment:	22 September 2021
Catchwords:	FAMILY LAW – parenting – Parties’ Applications for parenting orders with respect to the two children aged 13 and 10 – where the Applicant is the Paternal Grandmother and the Respondent is the Mother – the Paternal Grandmother lives in Town E and the Mother lives 350 kilometres away in City B – the Mother and Father separated in 2011 due to extreme violence perpetrated by the Father – the children lived in the Father’s primary care from separation to September 2020 and spent very limited time with the Mother – the oldest child made allegations of sexual abuse by the Father in September 2020 and the Father committed suicide shortly thereafter – the children have lived in the Paternal Grandmother’s primary care since 2020 – the children have never lived in the primary care of the Mother save for the short time between their birth and the separation of the Mother and Father HELD – Mother have sole parental responsibility for the children – children live with the Mother – children spend time with the Paternal Grandmother for the first half of each school term holidays, for two weeks in the long summer vacation and for one weekend each term in City B
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 64B(2), 60CC(2), 60CC(3), 61DA, 65DAA
Cases cited:	AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238
Division:	Division 2 Family Law
Number of paragraphs:	229
Date of last submission/s:	26 August 2021
Date of hearing:	25-26 August 2021
Place:	Melbourne
Counsel for the Applicant:	Mr McLeod
Solicitor for the Applicant:	Sam Mason Legal
Counsel for the Respondent:	Mr Hall
Solicitor for the Respondent:	Heinz Law

MLC 13993 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS NEAL Applicant
AND:	MS SHEEHY Respondent

ORDER MADE BY:	JUDGE BENDER
DATE OF ORDER:	22 SEPTEMBER 2021