O'Connor and Salman & Ors

[2013] FamCA 488

FAMILY COURT OF AUSTRALIA

O'CONNOR & SALMAN AND ORS [2013] FamCA 488

FAMILY LAW – CHILDREN – Children’s living arrangements –  Children live with the father – Children spend substantial and significant time with the mother – Children spend regular time with the maternal grandmother on the condition she not bring the children into contact with her former partner.

FAMILY LAW – CHILDREN – Best interests of the children – where the paternity of the eldest child was unknown – where the children would benefit from meaningful relationships with the mother and father – where the children were not at risk of harm from subjection or exposure to abuse, neglect or family violence in the care of the mother and father – where the mother and father both encouraged and facilitated the children’s relationships with the other – where the father could best meet the children’s physical needs – where the maternal grandmother could not likely protect the children from subjection to family violence while in her care for protracted periods – where the maternal grandmother encouraged the eldest child to refer to her as “mum”.

FAMILY LAW – CHILDREN – Parental responsibility – The mother and father have equal shared parental responsibility for both children – where the presumption of equal shared parental responsibility applied to the youngest child but not to the eldest child – where the mother and father having equal shared parental responsibility for the eldest child was in that child’s best interests – where the maternal grandmother had failed to involve the parents in major long term decisions affecting the eldest child.  

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 62B, 61DA, 64B, 65D, 65AA, 65DAA, 65DAC and 65DAE
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Malcolm & Monroe & Anor (2011) FLC 93-460
Marriage of L & T (1999) 25 Fam LR 590
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394
Valentine & Lacerra [2013] FamCAFC 53

APPLICANT: Ms O’Connor

FIRST RESPONDENT: Ms Salman

SECOND RESPONDENT: Mr Wolfe

THIRD RESPONDENT: Mr Brown

INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

FILE NUMBER: PAC 1386 of 2012

DATE DELIVERED: 26 June 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 3, 4, 5 & 6 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Graham

SOLICITOR FOR THE APPLICANT: Craney Family Solicitors

COUNSEL FOR THE FIRST RESPONDENT: Mr S. Rugendyke

SOLICITOR FOR THE FIRST RESPONDENT: Peter Hamilton & Associates

COUNSEL FOR THE SECOND RESPONDENT: Mr B. Kelly

SOLICITOR FOR THE SECOND RESPONDENT: Winder Lawyers

COUNSEL FOR THE THIRD RESPONDENT: Not Applicable

SOLICITOR FOR THE THIRD RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr G. Sundstrom

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: John Spence & Associates

Orders

1. All previous orders relating to the children Z Wolfe, born … 2009, and J Wolfe, born … 2010, (“the children”) are discharged.

2. The applicant (“the mother”) and the second respondent (“the father”) shall have equal shared parental responsibility for the children.

3. The children shall live with the father.

4. Each of the parties shall take all reasonable steps to ensure the children spend time with the mother as follows, or as otherwise agreed:

   (a)During New South Wales public school terms, on the second, fourth, sixth, and eighth weekends, from 6.00 pm on Friday until 6.00 pm on Sunday;

   (b)During New South Wales school holidays, except the Christmas school holidays, for the second half of such holidays, commencing at 12.00 noon on the middle Sunday and concluding at 6.00 pm on the next Sunday; and

   (c)During the New South Wales Christmas school holidays, for the first half of such holidays when the holidays commence in even numbered years and for the second half of such holidays when the holidays commence in odd numbered years.

5. Unless otherwise agreed, Orders 4(a) and 4(b) hereof are suspended between 6.00 pm Saturday and 6.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.

6. For the purposes of implementation of Order 4(c) hereof, the New South Wales Christmas school holidays are deemed to commence at 6.00 pm on the last day of school term, the holidays are deemed to end at 6.00 pm on the last day preceding the day upon which the children are due to return to school, and the mid point is the day halfway between those first and last days.

7. Unless otherwise agreed, Order 4(c) hereof is suspended from 10.00 am on Christmas Eve until 3.00 pm on Boxing Day each year, during which period:

   (a)The children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years; and

   (b)The children will spend time with the maternal grandmother between 10.00 am and 3.00 pm each Christmas Eve, subject to her compliance with Order 12 hereof (as prescribed by Order 9(c) hereof).

8. Unless otherwise agreed, for the purposes of implementing Orders 3-7 hereof, the father shall cause the delivery and the mother shall cause the collection of the children at the commencement of the time to be spent with the mother at the H Railway Station, NSW, and the mother shall cause the delivery and the father shall cause the collection of the children at the conclusion of the time spent with the mother at the same place.

9. Each of the parties shall take all reasonable steps to ensure the children spend time with the first respondent (“the maternal grandmother”) as follows, or as otherwise agreed, subject to her compliance with Order 12 hereof:

   (a)During New South Wales public school terms, on the first, fifth and ninth Sundays of each term, between 10.00 am and 6.00 pm;

   (b)From 10.00 am until 6.00 pm on the first day following the conclusion of the first, second and third school terms; and

   (c)From 10.00 am until 3.00 pm on Christmas Eve each year.

10. Unless otherwise agreed, for the purposes of implementing Orders 3-7 and 9 hereof, the party with whom the children are then staying shall cause the delivery and the maternal grandmother shall cause the collection of the children at the commencement of the time to be spent with the maternal grandmother at the F Railway Station, NSW, and the maternal grandmother shall cause the delivery and the party to whom the children are to be returned shall cause the collection of the children at the conclusion of the time spent with the maternal grandmother at the same place.

11. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

    (a)The mother each Wednesday when the children are living with the father, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time;

    (b)The father each Wednesday when the children are spending time with the mother, between 6.00 pm and 6.30 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;

    (c)The maternal grandmother each Thursday when the children are living with the father or spending time with the mother, between 6.00 pm and 6.30 pm, and for that purpose the maternal grandmother shall telephone the children on the telephone number provided to her respectively by the father and mother, and the father and mother shall ensure that the children are able to receive the maternal grandmother’s calls on those numbers at that time;

    (d)Whichever of the mother or father they are not then staying, on the children’s birthdays, between 6.00 pm and 6.15 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time; and

    (e)The maternal grandmother, on the children’s birthdays, between 6.15 pm and 6.30 pm, and for that purpose the maternal grandmother shall telephone the children on the telephone number provided to her respectively by the father and mother, and the father and mother shall ensure that the children are able to receive the maternal grandmother’s calls on those numbers at that time.

12. The parties are restrained from causing or allowing the children to be in the physical presence of, or to communicate with, Mr B.

13. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

14. Each party is restrained from denigrating the others in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the others.

15. Each party is restrained from permitting the children to refer to any person other than the father as “Dad” and the mother as “Mum”.

16. Each party shall forthwith inform the others, and keep the others informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

17. Leave is granted to the parties to furnish to any counsellor they engage for the provision of therapy to them or the children copies of:

    (a)These orders;

    (b)The reasons delivered for such orders; and

    (c)The Family Report dated 21 December 2012.

18. The father and mother shall forthwith do all things reasonably necessary to ensure:

    (a)The enrolment and regular attendance of each child at an early childhood learning centre; and

    (b)The paediatric assessment of each child.

19. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21. Costs are reserved for 28 days.

22. Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O’Connor & Salman & Wolfe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: PAC 1386 of 2012

Ms O’Connor

Applicant

And

Ms Salman

First Respondent

And

Mr Wolfe

Second Respondent

And

Mr Brown

Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern two children, aged three and four years respectively, born to the mother by two different fathers.

2. The mother is the applicant.

3. The father of the youngest child is the second respondent. The youngest child has resided with him since November 2010.

4. The paternity of the eldest child is unknown. The third respondent was joined to the proceedings in the belief he was the father, but paternity testing subsequently proved he was not, and he therefore filed a Notice of Discontinuance in April 2013 and withdrew from the proceedings. It was acknowledged the second respondent could not be the biological father of the eldest child.

5. The first respondent is the maternal grandmother of the children. She was joined to the proceedings because the eldest child has resided with her since June 2011.

6. The applicant (“mother”), second respondent (“father”), and first respondent (“maternal grandmother”) are in dispute about the allocation of parental responsibility, residential arrangements, and visiting arrangements for both children.

History

1. The mother and father began their relationship in 2008. At that time the mother was already pregnant with the eldest child, who was later born in early 2009. The youngest child was born to the mother and father in March 2010.

2. The mother and father finally separated in about November 2010.

3. From shortly following separation both children were in the care of the father. After a period of months, from early 2011, the children began to spend time on a fortnightly basis with the mother, but only in the father’s presence.[1] That consensual arrangement reflected the adversity of the mother’s personal circumstances at the time. She was depressed, using illicit drugs, and had only just secured shared accommodation in Sydney.[2]

   [1] Family Report, para 6; Mother’s affidavit, para 31; Father’s affidavit, paras 108-116

   [2] Family Report, para 38

4. In April 2011 the father permitted the eldest child to stay overnight with the mother, who thereafter detained the child for two months.[3]

   [3] Family Report, para 6; Mother’s affidavit, paras 32-34; Father’s affidavit, paras 117-118

5. Although there is factual dispute about the circumstances in which it occurred, by late June 2011 the eldest child began living with the maternal grandmother, who then refused to return the child to either the mother or the father. The mother alleged the child was detained,[4] whereas the maternal grandmother alleged the child was surrendered to her.[5] The eldest child has now lived with the maternal grandmother since June 2011.[6]

   [4] Mother’s affidavit, paras 35-37

   [5] Maternal grandmother’s affidavit, paras 62-66

   [6] Family Report, para 7

6. As a consequence of the parties’ incorrigible intransigence, the familial relationships were completely fractured. The children did not see one another after April 2011, the youngest child did not see the mother or maternal grandmother after April 2011, and the eldest child did not see the father after April 2011 or the mother after June 2011.

7. That unsatisfactory situation prevailed for over a year until orders were made by the Court in July 2012,[7] following the commencement of these proceedings by the mother before the Federal Magistrates Court (as the Federal Circuit Court then was) in April 2012.[8]

   [7] Family Report, para 8

   [8] Mother’s affidavit, para 42

8. On 13 July 2012, with the consent of the parties, interim parenting orders were made providing for the eldest child to spend time with the mother and father on only two discrete occasions,[9] and the proceedings were adjourned for several weeks for further interim hearing.[10]

   [9] Order 9 made on 13 July 2012

   [10] Orders 7, 12 made on 13 July 2012

9. At the following court event on 10 August 2012 the proceedings were transferred to this Court.[11]

   [11] Order 10 made on 10 August 2012

10. Once proceedings were before this Court, on 8 October 2012, further interim orders were made with the consent of the parties, relevantly providing for:

    a)The discharge of the former orders;

    b)The youngest child to live with the father and to spend time with the mother; and

    c)The eldest child to live with the maternal grandmother and to spend time with the mother and father together.

11. In addition, other orders were made requiring the enrolment of the children at an early learning centre, paediatric assessment of the children, and restraint of the children from being exposed to two named individuals, one of whom was the maternal grandmother’s partner, Mr B, and the other of whom is the mother’s housemate.

12. The orders made in October 2012 applied until the final hearing in June 2013.

The competing proposals

1. The proposals of the parties and the Independent Children’s Lawyer were a moving feast. The parties’ proposals changed markedly over the course of the litigation and were different to the proposals they discussed with the Family Consultant.[12] The mother relied upon her Amended Application filed on 31 May 2013, but the father, maternal grandmother, and Independent Children’s Lawyer separately tendered minutes of orders.[13]

   [12] Family Report, paras 20-22

   [13] Exhibits F7, MGM2, ICL3

2. By the conclusion of the evidence, the parties and Independent Children’s Lawyer all agreed the youngest child should remain living with the father, but the residence of the eldest child and the allocation of parental responsibility for both children remained controversial.

3. The mother proposed that the eldest child live with her, that she have sole parental responsibility for him, and that she and the father have equal shared parental responsibility for the youngest child.[14]

   [14] Further Amended Application filed 31/5/13, Orders 1, 3, 4

4. The father proposed that the eldest child live with him and that he and the mother have equal shared parental responsibility for both children.[15] The Independent Children’s Lawyer agreed.[16]

   [15] Exhibit F7, Orders 2-3

   [16] Exhibit ICL3, Orders 1-2

5. Irrespective of whether the eldest child lived with the mother or father, they each proposed that both children spend substantial and significant time with the other,[17] and further, that the children spend time periodically with the maternal grandmother.[18] The Independent Children’s Lawyer agreed.[19]

   [17] Further Amended Application filed 31/5/13, Orders 5-6; Exhibit F7, Orders 4, 7;   

   [18] Further Amended Application filed 31/5/13, Order 7; Exhibit F7, Orders 6-7

   [19] Exhibit ICL3, Orders 3-7

6. The maternal grandmother proposed that the eldest child live with her.[20] Although she proposed that parental responsibility for the children be bestowed upon the parties in different combinations,[21] her counsel revised that proposal during submissions and suggested all three parties could have equal shared parental responsibility for both children.

   [20] Exhibit MGM2, Order 3

   [21] Exhibit MGM2, Orders 1-2

7. The maternal grandmother proposed the eldest child spend substantial and significant time with both the mother and father, but in the mother’s case, only on condition she ceased living with her current housemate.[22] She proposed that the youngest child spend time with her one night each week.[23]

   [22] Exhibit MGM2, Orders 5-6

   [23] Exhibit MGM2, Order 7

The primary evidence

1. The mother relied upon her affidavit filed on 31 May 2013.

2. The father was permitted to rely upon:

   a)His affidavit filed on 31 May 2013;

   b)The affidavit of Ms C filed on 31 May 2013; and

   c)The affidavit of Ms W filed on 31 May 2013.

1. The maternal grandmother was permitted to rely upon:

   a)Her affidavit filed on 31 May 2013; and

   b)Paragraphs 13-14 inclusive of the affidavit of Ms U filed on 31 May 2013.

2. The Independent Children’s Lawyer did not separately adduce any evidence but relied, as did the parties, on the Family Report dated 21 December 2012. The Family Consultant was cross-examined and her evidence proved to be measured, thoughtful and convincing.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

1. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

2. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

3. In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

4. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

5. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the children

1. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44]-[48], [65], [74], [109]-[112], [119]; Potts & Bims & Ors [2007] FamCA 394 at [8]-[9]).

2. The identity of a child’s parent is not always free from doubt (see Aldridge & Keaton at [15]-[22], [55]), but relevantly for these proceedings, the maternal grandmother is certainly not the parent of either child and the father is certainly not the parent of the eldest child. Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern others may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111]-[112], [119] Malcolm & Monroe & Anor (2011) FLC 93-460 at [94]-[100]; Valentine & Lacerra [2013] FamCAFC 53 at [51]-[53]). It is therefore convenient to deal with the mother, father and maternal grandmother simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.

3. Importantly for present purposes, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Valentine & Lacerra [2013] FamCAFC 53 at [42]-[43]; Aldridge & Keaton at [59]-[61], [75]-[81], [83]; Dennett & Norman [2007] FamCA 57 at [53]-[60]).

4. Since these proceedings were commenced before 7 June 2012, the amendments to the Act, and in particular to s 60CC thereof, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) do not apply (see Schedule 1, items 44 and 45).

Best interests – primary considerations

Section 60CC(2)(a)

1. The eldest child did not appear to the Family Consultant to have any preference for interaction with any of the parties with whom he associated. He engaged them all equivalently, without visible emotion or affection.[24] In cross-examination, the Family Consultant elaborated how the eldest child may have disorganised attachments with each of the parties, although it was not possible for her to formally diagnose an attachment disorder.

   [24] Family Report, para 87

2. Nevertheless, when the mother made a concerted effort to engage with the eldest child he responded immediately in a warm and reciprocal way,[25] suggesting he has a meaningful relationship with the mother, from which he will derive benefit. No submission was made to the contrary. Steps must therefore be taken to preserve that relationship. Unfortunately, the maternal grandmother’s desultory efforts to promote the eldest child’s relationship with the mother over the past two years have been inadequate. That situation is unlikely to change if the eldest child continues to live with the maternal grandmother.

   [25] Family Report, para 93

3. The youngest child’s interactions with the mother and father were “mutually warm and positive”.[26] The mother even believed the youngest child’s closest attachment is with the father.[27] It follows that orders must also be made to ensure the youngest child continues to derive benefit from his meaningful relationships with the mother and father.

   [26] Family Report, para 107

   [27] Family Report, para 42

4. Since the father and maternal grandmother are not the eldest child’s “parent”, the nature of the child’s relationships with them is an additional consideration under s 60CC(3)(b) rather than a primary consideration under s 60CC(2)(a) of the Act. The same observation applies to the maternal grandmother in respect of the youngest child.

Section 60CC(2)(b)

1. Some evidence was adduced which was suggestive of both the mother and father posing some form of risk of harm to the children. Ultimately, however, it was not expressly contended that the children are at risk of either physical or psychological harm through subjection or exposure to abuse, neglect or family violence in the households of either the mother or father.

2. The mother alleged that on two past occasions the father lost his temper with her and reacted violently, on one occasion by throwing her over a coffee table and on the other occasion pushing her down.[28] The father denied the allegations and asserted he had never been violent towards the mother at any time.[29] The mother admitted in cross-examination she exaggerated her evidence about at least one of those incidents, and in any event, she proposed that she and the father share parental responsibility for the children, which necessarily meant she did not consider any past family violence was sufficient to preclude their communication about and discussion of issues of importance to the children. The mother’s proposal for the youngest child to remain living with the father was also anathema to any suggestion he posed a risk of harm to the children.

   [28] Mother’s affidavit, paras 20-21, 27

   [29] Father’s affidavit, paras 92-93, 97-98

3. The maternal grandmother was critical of the mother’s past parenting capacity[30] and gave brief evidence about the unkempt condition of the eldest child when he came into her care in June 2011.[31] In cross-examination the mother admitted the diminished standard of her parenting skills at that time, but it should not be forgotten she was then barely an adult herself. Both children were born before the mother had attained her majority. Notwithstanding the mother’s past deficiencies, the evidence did not rationally permit an inference the children are still now at risk of harmful neglect by her. The maternal grandmother deposed to being perfectly happy for the eldest child to spend substantial and significant unsupervised time with the mother, provided it was in the absence of the mother’s housemate.[32] The caveat of concern about the housemate had nothing to do with the mother’s competency as a parent.

   [30] Family Report, para 58

   [31] Maternal grandmother’s affidavit, para 67

   [32] Maternal grandmother’s affidavit, paras 93-95, 115-117

4. The concerns about the mother’s housemate, which were mainly asserted by the maternal grandmother, but also to a lesser extent by the Independent Children’s Lawyer,[33] were unsupported by the evidence. It is therefore unnecessary to injunct the children’s interaction with the mother’s housemate.

   [33] Exhibit ICL3, Order 8

5. An interim injunction was previously made, with the mother’s consent, precluding the mother from permitting the children’s contact with her housemate, but that was seemingly to satisfy the other parties’ concerns in order to consummate an interim agreement.[34] The mother denied she was in a romantic relationship with her housemate and denied either she or the children were at risk of harm in his presence.[35]

   [34] Order 1.17 made on 8 October 2012

   [35] Family Report, para 40

6. The hysteria about such risk seems to principally emerge from the mother’s presentation to the father in October 2012 with blackened eyes, which injury she reported was caused by her boyfriend.[36] Given the mother said she had numerous romantic relationships after her separation from the father, and none of those have been with her housemate, the father’s impulsive assumption that the housemate was the assailant was unwise. The mother asserted in evidence her housemate has never assaulted her. The father must have realised his connection of the mother’s injury to her housemate was unwarranted since he did not seek the imposition of any final injunction concerning the children’s interaction with her housemate.

   [36] Father’s affidavit, para 137; Maternal grandmother’s affidavit, para 96

7. The father must also have realised his other extravagant suspicions about the mother’s housemate were unverified by the evidence.[37] The mother’s denial of her housemate’s involvement with illicit drugs was not contradicted.

   [37] Father’s affidavit, paras 133-136

8. Some veiled criticism was levelled at the mother for not calling her housemate as a witness in the proceedings, which criticism was unjustified. No permission was granted to the mother to call him as a witness when procedural orders were debated and made.[38] In any event, the mother suggested the father should personally meet her housemate in order to abate his concern.[39] Although the evidence was indistinct about whether the father availed himself of that offer, it was common ground they had spoken together over the telephone.

   [38] Order 5 made on 31 January 2013

   [39] Family Report, para 69

9. Neither the mother nor father presents any tangible risk of harm to the children. Rather, the evidence demonstrated the children are only at risk of physical and psychological harm in the care of the maternal grandmother due to their subjection or exposure to abuse and family violence.

10. That risk was posed in two ways – firstly, the prospect of the children being physically assaulted by the maternal grandmother or Mr B, and secondly, the prospect of the children witnessing family violence between the maternal grandmother and her partners, including Mr B.

11. The maternal grandmother physically abused the mother and her younger siblings in the past. During one particular incident in 2008 the maternal grandmother assaulted the mother when she was only 16 years of age and heavily pregnant with the eldest child. The maternal grandmother punched the mother in the face repeatedly and threatened to stab the foetus with a knife. The maternal grandmother also punched the mother’s younger sibling and threatened to stab the father.[40] The mother’s version of that incident is corroborated by the father and records of both the police and the NSW Department of Family and Community Services (“the Department”).[41]

    [40] Mother’s affidavit, paras 56-57

    [41] Father’s affidavit, paras 129-130; Exhibit F3; Family Report, paras 28, 36

12. Although the maternal grandmother adamantly denied the incident, it was only on the basis that she was not charged by police with any offence. The maternal grandmother baldly denied ever physically or verbally abusing any of her children at any time,[42] but I reject her denials as probably false. The consistent evidence of the mother and father and the independent records of the police and Department are more likely correct.

    [42] Family Report, para 56

13. The maternal grandmother is prone to solve her problems by reacting violently. She has a conviction for assaulting another woman by punching her several times in the face and pushing her onto a road.[43]

    [43] Family Report, para 55; Exhibit F6

14. There is no evidence the maternal grandmother ever physically abused the children, but her past assaults of her own children and others means the children remain at some risk of abuse by her, even if the risk is not regarded as unacceptably high.

15. However, the risk of abuse posed by Mr B to the children is acute. So is the risk of their exposure to family violence between the maternal grandmother and her prospective partners.

16. The maternal grandmother has habitually fallen into abusive domestic relationships. The father of her three youngest children was an alcoholic who was violent towards her throughout their relationship. That violence often occurred in the presence of her children, including the mother, which the maternal grandmother admitted was deleterious for them.[44] The mother still vividly recalls an incident she witnessed as a young child when the maternal grandmother had a knife held to her throat by her former partner.[45] The maternal grandmother astoundingly reported she still has a “good relationship” with that man, whom she believes enjoys an “excellent relationship” with her three youngest children.[46]

    [44] Family Report, para 47

    [45] Family Report, para 31

    [46] Maternal grandmother’s affidavit, para 6

17. After the maternal grandmother’s romantic association with that man ended she began a relationship with Mr B who, over the past decade, has been similarly abusive to her and her children.[47] The maternal grandmother and her children have had to escape Mr B’s violence and seek sanctuary from him in refuge, which is where the mother met the third respondent.[48] Mr B was convicted of and imprisoned for numerous assaults upon the maternal grandmother, which even included him knocking out her front teeth in the presence of her children and threatening to kill her. Mr B also assaulted the maternal grandmother’s children.[49] An apprehended violence order was in force against Mr B for the protection of the maternal grandmother until as recently as October 2012.[50]

    [47] Family Report, para 32

    [48] Family Report, para 76

    [49] Family Report, para 49; Mother’s affidavit, paras 53-54, 64; Exhibits F1, F4, F5

    [50] Family Report, para 49(iv)

18. Surprisingly, the maternal grandmother said in cross-examination “[Mr B] never touched my children”, which was simply false.

19. The maternal grandmother’s mendacity about the violence perpetrated within her household necessarily means her evidence needs to be approached cautiously.

20. Mr B completed a domestic violence program in 2008, to which his response was apparently described by the program convener as “excellent”.[51] If that genuinely was an accurate description of Mr B’s attitude in 2008, it was an extraordinarily ephemeral change for him because his assaults of the maternal grandmother and her children continued up until at least late 2011.[52]

    [51] Family Report, para 50

    [52] Family Report, para 49

21. The mother and eldest child stayed with the maternal grandmother temporarily in April 2011. The mother observed Mr B assault the maternal grandmother by punching and pushing her, which occurred during an argument about the mother and eldest child temporarily staying with them. It was that assault which caused the mother to flee with the eldest child back to her home in Sydney. Amazingly, rather than attribute blame to Mr B for that violent incident, the maternal grandmother blamed the mother for coming and staying at her home when she knew of Mr B’s violent propensity.

22. The maternal grandmother informed the Family Consultant that Mr B engaged with the M Mental Health Team in early 2012. As a consequence of his engagement with that organisation the maternal grandmother informed the Family Consultant “he doesn’t yell at [her] anymore”.[53]

    [53] Family Report, para 51

23. Notwithstanding the scandalous history of domestic violence perpetrated upon her, the maternal grandmother was defensive of Mr B when discussing him with the Family Consultant. She considered Mr B had made such “a big change” she was reduced to tears when explaining her pride in him.[54] She spoke about him positively and said there was nothing about her relationship with him which was “negative for the kids”.[55] During cross-examination the maternal grandmother said she and Mr B had their “ups and downs”, but their household was a “happy environment”.

    [54] Family Report, para 51

    [55] Family Report, para 48

24. Even if the maternal grandmother’s stated beliefs were honestly held, the evidence does not reasonably permit the same conclusions or the same degree of confidence in Mr B’s reformation. The maternal grandmother’s attitude about Mr B was either entirely disingenuous or completely misguided. It must have been one or the other.

25. There could be little doubt the children would be at unacceptable risk of physical and psychological harm through subjection or exposure to abuse and family violence within the maternal grandmother’s home.

26. The risk cannot be satisfactorily attenuated by imposing an injunction precluding the maternal grandmother from allowing the children to be in the presence of Mr B. The maternal grandmother told the Family Consultant such an injunction is “not really practical”,[56] because she wanted to maintain her relationship with Mr B. Her asserted willingness to enforce any such injunction may have been well-intentioned,[57] but little else. Even then, in the face of an interim injunction,[58] the maternal grandmother allowed Mr B to attend her home so she could meet him outside and enjoy his company.[59]

    [56] Family Report, para 52

    [57] Family Report, para 52

    [58] Order 8 made on 13 July 2012; Order 1.18 made on 8 October 2012

    [59] Family Report, para 15

27. The maternal grandmother deposed she is no longer in a relationship with Mr B and would submit to an injunction permanently precluding the eldest child’s interaction with Mr B.[60] However, such evidence is unreliable. In cross-examination the maternal grandmother said she ended her relationship with Mr B eight months ago in September 2012, but that evidence was necessarily false because when the maternal grandmother conferred with the Family Consultant in December 2012 she conceded her relationship with Mr B was then still current, albeit that she knew she was not permitted to allow contact between him and the eldest child.

    [60] Maternal grandmother’s affidavit, paras 98-100

28. As the mother observed and the maternal grandmother admitted during cross-examination, the relationship between the maternal grandmother and Mr B has waxed and waned for well over a decade. There must be a strong chance it will rekindle, just as it has done numerous times in the past, particularly since the maternal grandmother deposed to them still being on “good terms”.

29. Both the mother and father believe the maternal grandmother is incapable of enforcing an injunction precluding the children’s association with Mr B.[61] Their concerns were mirrored by the third respondent, who informed the Family Consultant the eldest child still spoke fearfully of Mr B despite the existence of the interim injunction.[62] The Family Consultant agreed.[63] If the maternal grandmother does reconcile her relationship with Mr B, her resolve to adhere to any injunction would almost certainly dissolve within a short space of time.

    [61] Family Report, paras 32, 70

    [62] Family Report, paras 84, 104

    [63] Family Report, para 122

1. Compliance with the injunction by the maternal grandmother should be a condition of the children, or either of them, living or spending time with her. The maternal grandmother’s counsel acknowledged the sense of such an order.

2. Logic dictates that such an injunction stands a greater chance of compliance if it operates only during finite periods when the children spend time with the maternal grandmother than it would if it operated permanently while either child lived with the maternal grandmother.

Best interests – additional considerations

Section 60CC(3)(a)

1. The children were too young to express any views about their care and the nature of their interaction with the parties.

Section 60CC(3)(b)

1. The third respondent told the Family Consultant the eldest child “always talks about [the mother] and [the father]”,[64] from which it may be imputed the child values his relationship with the father. The mother said in cross-examination the eldest child had a “good relationship” with the father. The eldest child’s relationship with the father seemed cordial to the Family Consultant.[65]

   [64] Family Report, para 82

   [65] Family Report, para 94

2. The Family Consultant made no frank observation about the nature of the eldest child’s relationship with the maternal grandmother, but it can safely be assumed it is an important relationship to the child because he has lived with her for the last two years and he calls her “Mum”.[66] The Family Consultant agreed in cross-examination the maternal grandmother has been the eldest child’s primary carer, but she cautioned that the quality of the child’s attachment with the maternal grandmother was “still in question”.

   [66] Family Report, para 99

3. The youngest child apparently recognises and tolerates his interaction with the maternal grandmother, but there is little evidence about the quality of that relationship. While under the observation of the Family Consultant, the child exhibited no positive or negative reaction when introduced to the maternal grandmother, although he responded to her engagement with him.[67]

   [67] Family Report, para 110

4. The youngest child did not spend any time with the maternal grandmother after April 2011 until early 2013. The interim orders made in July 2012 and October 2012 made no provision for their interaction. Arrangements were privately made between the father and maternal grandmother for the youngest child to spend occasional time with the eldest child and maternal grandmother, but those arrangements were recent and the occasions were few.[68]

   [68] Maternal grandmother’s affidavit, para 90

Sections 60CC(3)(c), (4)

1. Historically, the parties were unwilling or unable to facilitate and encourage close and continuing relationships between the children and the other parties. None of the parties did anything to promote either child’s relationship with any of the other parties in the period between June 2011 and July 2012. Even the orders which were made consensually in July 2012 were hopelessly inadequate. They permitted the eldest child to have only two visits with the mother and father prior to a contested hearing in August 2012, which hearing did not eventuate. It was not until the orders were made in October 2012 that proper arrangements were made for the children’s interaction with the parties.

2. The former antagonism between the mother and father has ebbed away. In fact, they have successfully developed a commendably co-operative relationship within which to raise the youngest child. They have complied with the interim parenting orders and have additionally negotiated alterations from time to time when needed.[69] That even included minding the child for one another and happily interacting with the child together.[70] They will therefore facilitate the children’s relationships with one another.

   [69] Family Report, paras 14, 42, 106, 114

   [70] Family Report, paras 60, 95

3. The Family Consultant considered the maternal grandmother would not facilitate the eldest child’s relationship with the mother and father.[71] That opinion seems plainly correct.

   [71] Family Report, para 128

4. The maternal grandmother insisted on the eldest child’s time with the mother being supervised by the father when interim orders were made in October 2012. Over recent months, she determined she would remain at the venue where the mother and father spend time with the children and was sometimes accompanied by her sister. I reject the maternal grandmother’s evidence that she was asked to do so by the mother because of her fear of the father. Such evidence was refuted by both the mother and father, who both said they did not ask the maternal grandmother to stay and felt intimidated by her presence. The maternal grandmother’s evidence was also inconsistent with the explanation she offered in her affidavit, which was that she stayed to supervise visits in order to overcome problematic behaviour by the eldest child.[72]

   [72] Maternal grandmother’s affidavit, paras 71-73

5. The maternal grandmother’s final proposal for unsupervised visits between the children and the mother is difficult to reconcile with the history of her initial opposition to any interaction between them, followed by interaction only under the supervision of the father, followed by interaction under her personal supervision. Clearly, in order to be logical, the maternal grandmother’s final proposal had to correlate with the evidence adduced at trial, but her historical antipathy towards the mother does not bode well for her future support of the children’s relationships with the mother.

Section 60CC(3)(d)

1. The eldest child has now lived with the maternal grandmother for nearly half of his short life. Displacement of his existing residence would no doubt be emotionally disturbing to him – probably just as disturbing as his earlier displacements from the father in April 2011 and from the mother in June 2011. Such distress for the eldest child would only be justified if it was for his greater good.

Section 60CC(3)(e)

1. The mother lives in Sydney, the father lives in the south western suburbs of Newcastle, and the maternal grandmother lives in the inner suburbs of Newcastle.

2. The mother is not yet licensed to drive and is reliant upon public transport. It takes more than two hours to travel by train from her home to a station near to the father’s home.[73] The mother said in cross-examination she had considered relocating from Sydney to be closer to the father and youngest child, but was reluctant to do so because she thought it was less likely she could secure full-time employment away from Sydney.

   [73] Mother’s affidavit, paras 51, 86

3. The driving time between the households of the father and maternal grandmother in Newcastle was estimated by the father at about 40 minutes. The maternal grandmother did not disagree.

4. Obviously, travel for the parties and children between Sydney and Newcastle presents some practical difficulty and entails some expense, but it is not an insurmountable hurdle. Travel within Newcastle is not problematic.

Section 60CC(3)(f)

1. The mother has secured full-time employment in Sydney, which she is keen to retain. She works eight-hour shifts five days per week,[74] travelling to and from work by train.

   [74] Mother’s affidavit, para 73

2. The mother has also enrolled at a tertiary institution in order to study and complete her secondary qualifications by correspondence. She anticipates the course will be spread over the next two years and will entail about five hours study each day, in addition to her employment commitments.

3. As would be apparent, the hours the mother will devote to her employment, travelling between her home and place of work, and to her education will leave little time for anything else in her life. Of course it is laudable the mother desires improvement in her life through work and study, but the practical consequence is she has little time available to attribute to the care of a young child. Even allowing for some flexibility in her employment hours, including the prospect of her temporarily working only part-time, the time she will be able to devote to care of the eldest child will be quite restricted.

4. The mother’s predicament is complicated by the absence of any family support to help her care for the eldest child. She is now estranged from the maternal grandmother and her siblings. She enjoys the support of the father and paternal family, but they do not live in Sydney. She has the support of her housemate, but he also works full-time and has children of his own. The unavailability of the housemate to help look after the eldest child in June 2011 when the mother was ill was precisely the reason the child passed into the care of the maternal grandmother.

5. The father has the capacity to care for the children on a permanent basis. He is not gainfully employed and is therefore always available to care for and supervise them. He lives in relatively close proximity to his sister and the paternal grandmother, both of whom gave convincing evidence of their willingness and ability to support the father’s residential care of the children. The paternal grandmother is an Aboriginal educator and the father’s sister works for a charitable organisation in the operation of a program for disadvantaged families. Their help will therefore be tangible and valuable.

6. The Family Consultant was cautious about the curtailment of the father’s parenting capacity by reason of the onerous responsibility of permanent care for two young children, given his susceptibility to stress,[75] despite the father’s rigorous defence of his capacity.[76] I accept that the stress he exhibited to the Family Consultant was related to a recent relationship breakdown and his apprehension about these proceedings; both as to the ultimate result and the necessity for him to re-visit the issue of his sexual abuse as a child. Such apprehension is not unnatural. The father said in evidence he expected his stress to subside once the litigation was over. In fact, he was already experiencing relief when he gave that evidence because he realised his cross-examination was nearly complete. The evidence does not justify undue concern about the father’s ability to cope, which was the conclusion the Family Consultant also reached.

   [75] Family Report, paras 60, 66, 129

   [76] Father’s affidavit, paras 212-224

7. The maternal grandmother’s capacity to cater to the eldest child’s needs is seriously compromised. Her parenting capacity is necessarily interlinked with her attitude to the child and the responsibilities of parenthood, so the issue is discussed pursuant to s 60CC(3)(i) of the Act.

Section 60CC(3)(g)

1. The self-indulgent lifestyle of illicit drug use was common to each of the parties, to the detriment of the children. However, each of them has managed to change their lifestyle so their respective parenting capacities, which will be elaborated pursuant to s 60CC(3)(i) of the Act, have concomitantly improved.

2. No other aspect of the parties’ maturity, sex, lifestyle, or background was addressed as relevant to the outcome of the proceedings.

Sections 60CC(3)(h), (6)

1. The mother and father identify themselves and both children as Aboriginal. They speak positively about the children’s cultural identity and express a commitment to encourage the children’s connection with their heritage.[77]

   [77] Family Report, para 10; Father’s affidavit, paras 148-161

2. The maternal grandmother does not identify as Aboriginal and affects no interest in indigenous culture, either personally or for the children’s sake.

3. No aspect of the evidence suggested the children’s rights to maintain and enjoy their connection with their Aboriginal heritage will be impinged, provided the mother and father each have a role in the exercise of parental responsibility for the children.

Sections 60CC(3)(i), (4)

1. The Family Consultant made the following observation about the parties, and indirectly the children,[78] which I accept as correct:

   There would appear to be no doubt that [the children] have endured parenting environments which have posed multiple risks of harm. Sadly, the wellbeing and functioning of each of the children’s caregivers appears to have substantially impacted by cumulative harm in their own upbringing; perpetual exposure to violence, abuse, neglect and/or trauma (sic).

   [78] Family Report, para 118

2. The attitudes of the parties to the children and to the responsibilities of parenthood have obviously been shaped by their adverse experiences.

3. As the Family Consultant observed, the mother and father appear to have recognised that fact and taken steps to change. They are conscious of their past shortcomings, have abstained from illicit drug use, and made a concerted effort to improve their parenting performance.[79]

   [79] Family Report, paras 37, 119

4. The Family Consultant must logically be correct to express some reservations about the permanence of the positive changes,[80] but the attitudinal change so far demonstrated by the mother and father provides a sound foundation for reasonable optimism.

   [80] Family Report, para 120

5. The mother asserted she ceased using illicit drugs approximately two years ago, which assertion is generally consistent with independent records and verified by negative urinalysis tests undertaken by her over the past year.[81] She is anxious for the children not to be subjected to the same experiences as her,[82] remorseful for her past deficiencies as a parent, and keen to continue her improvement.[83] She has managed to obtain full-time employment and is intent on studying by correspondence to complete her secondary qualifications.

   [81] Family Report, para 38; Mother’s affidavit, para 43

   [82] Family Report, para 34

   [83] Family Report, para 41

6. The father also alleged he had been largely abstinent from illicit drugs since his attendance at residential rehabilitation in 2008.[84] He has experienced occasional transient relapses, but they were not serious. The mother conceded she was surprised by the revelation of the father’s relapse, as she believed he had “cleaned up his act” and had no concerns about his drug or alcohol use.

   [84] Father’s affidavit, paras 175-192

7. The father’s positive attitude towards the responsibilities of parenthood was exemplified in another important way. He expressed to the Family Consultant some degree of ambivalence about the eldest child living with him,[85] which was not interpreted critically by the Family Consultant. Rather, it was evidence of the father insightfully contemplating the potential advantages of the eldest child living with the mother, even though he was always firm about his proposal for the eldest child to live with him.

   [85] Family Report, para 22

8. The father admitted he had told the maternal grandmother’s sister on one occasion it may be better for the eldest child to live with the maternal grandmother.[86] The Family Consultant similarly interpreted that as the father’s insightful reflection upon the implications for the eldest child of being removed from the maternal grandmother’s care. She described it as an “important empathic reflection on what may be best for [the eldest child]”. I agree his statement to the maternal grandmother’s sister should not be misinterpreted as a lack of his commitment to the eldest child or as an admission he is not best placed to care for the child. It would be much more concerning if the father had failed to objectively consider all of the residential alternatives for the eldest child and blithely assumed he was the child’s best option.

   [86] Affidavit of Ms U, para 14

9. The father always treated the eldest child as a child of his own, which filial relationship the mother and father attempted to consolidate by using the father’s surname as the child’s surname. The eldest child has never known any other paternal figure.[87] The eldest child responded to that treatment by previously referring to the father as “Dad”. The father’s commitment to the eldest child remains undiminished, as evidenced by his continued contest of these proceedings to pursue an order for the eldest child to live with him. The father said in cross-examination, which I accept as truthful, “I do care a lot about my sons and I do think they need to be together”.

   [87] Father’s affidavit, paras 10, 30-32

10. It is true the maternal grandmother has also made an effort to improve her parenting performance, but she has not demonstrated the same level of insight into her imperfections as the mother and father have into theirs.

11. The one aspect of the maternal grandmother’s life which has changed for the better is her recent abstinence from use of illicit drugs. She used cannabis on a daily basis for approximately a decade. Mischievously, the maternal grandmother deposed to the mother smoking cannabis at her home in April 2011,[88] but omitted to mention she too was then smoking cannabis on a daily basis. She was forced to make the admission during cross-examination, conceding her former heavy drug use. The mother asserted to the Family Consultant and also during cross-examination that the maternal grandmother formerly used cannabis every few hours of every day.[89] It was therefore highly hypocritical for the maternal grandmother to assert her indignation at the mother and father using drugs whilst parenting the children,[90] because her own parenting capacity was afflicted by the same vice.

    [88] Maternal grandmother’s affidavit, para 61

    [89] Family Report, para 33

    [90] Maternal grandmother’s affidavit, para 36

12. The maternal grandmother denied any use of cannabis after she assumed care of the eldest child in June 2011,[91] but that was probably incorrect because she admitted deposing in an earlier affidavit to her use of cannabis continuing up until November 2011.

    [91] Maternal grandmother’s affidavit, para 105

13. An order was made in July 2012 for random drug testing,[92] and it emerged in evidence that the maternal grandmother had complied with at least some of the requests for her to submit randomly to urinalysis. It is uncontroversial the maternal grandmother returned negative test results in August 2012, January 2013, and May 2013.

    [92] Order 4 made on 13 July 2012

1. The maternal grandmother denied past use of any illicit drugs other than cannabis, but that denial was contradicted by records of the Department, which are more likely correct,[93] and also by the evidence of the mother[94] and father.[95] Nevertheless, the drug screens produced by the maternal grandmother were also negative for illicit drugs other than cannabis.

   [93] Family Report, para 53

   [94] Mother’s affidavit, para 55

   [95] Father’s affidavit, para 127

2. I accept that the maternal grandmother is now abstinent from illicit drugs. While that is commendable, her reformation as a parent is far from complete.

3. The Family Consultant said she was:[96]

   …extremely concerned about the parenting environment currently provided by [the maternal grandmother]. [The maternal grandmother] demonstrated a considerable lack of insight and empathy for the children’s experiences. She also demonstrated a poor reflective capacity with regards to her parenting, and appeared to dismiss responsibility for any of the adversity experienced, not only by [the children], but also her own children.

   [96] Family Report, para 121

4. The Family Consultant also said:[97]

   [The eldest child’s] development, emotional state and behaviour are of concern. [The maternal grandmother’s] parenting capacity and empathy for the children appears extremely limited. Therefore, the safety and wellbeing of the children may be at high risk in [the maternal grandmother’s] primary care. These risks are exemplified if the Court finds that [the maternal grandmother] maintains a relationship with [Mr B] or is continuing to use illicit drugs.

   [97] Family Report, para 128

5. Although the maternal grandmother does not currently maintain a relationship with Mr B and she is no longer using illicit drugs, the Family Consultant’s underlying opinion that the children “may be at high risk in her primary care” remains undisturbed. I accept that opinion as correct.

1. The impingement of the maternal grandmother’s attitude to the responsibilities of parenthood and the advancement of the eldest child is demonstrated by both what she says and how she behaves. Her behaviour now with the eldest child is reminiscent of how she parented her own children.

2. In the past, the maternal grandmother deceived the mother about her paternity and eventually untruthfully told the mother, when she was only an adolescent, she was conceived during a rape.[98] I do not accept the maternal grandmother’s denial of doing so. The mother had nothing to gain by misrepresenting the truth in that respect.

   [98] Family Report, para 29

3. The mother also said it was the maternal grandmother who informed the eldest child that the father was not his biological father, about which the mother was clearly annoyed, despite the maternal grandmother’s denial. I similarly reject the maternal grandmother’s denial as untruthful. The mother and father had nothing to gain by telling the eldest child such information. They wanted him to believe the father was his father.

4. The eldest child, despite his tender age, learned to use profane and abusive language whilst in the care of the maternal grandmother.[99] There could be no reasonable excuse for a four year old child to repeatedly use the “f-word” and the “c-word”. The eldest child must have learned to use that language in the maternal grandmother’s household and not elsewhere because at that point in time he was not attending pre-school or any other outside activity.

   [99] Family Report, para 102

5. The maternal grandmother’s stated view that Mr B was not a negative influence on her children or the eldest child was a bewildering assertion. It is difficult to resist the inference their failure to thrive is attributable to the difficulties they experienced within the maternal grandmother’s household. The maternal grandmother’s three youngest children have not yet shown the aptitude and endeavour of the mother. Their lives are variously blighted by illicit drug use, criminal activity, unemployment, procreation at a young age, and unsettled accommodation that commonly vacillates between the homes of the maternal grandmother, their father, and their friends. The maternal grandmother has seemingly not been able to provide any of them with a solid platform from which to launch into adulthood.

6. The eldest child’s acute sensitivity to noise, noticed by the Family Consultant,[100] was said to be indicative of his experience of cumulative harm over a prolonged period. The Family Consultant explained that children who have suffered cumulative harm suffer hyper-arousal. There is every indication the eldest child has, over the last two years living with the maternal grandmother, suffered the same privations as the maternal grandmother’s own children.

   [100] Family Report, para 88

7. The maternal grandmother could not recognise the emotional despair of the eldest child when he began to live with her in June 2011. Even though she had only met the child on about four separate occasions prior to June 2011, the maternal grandmother was largely oblivious to the emotional wrench the child suffered through his enforced separation from the mother and father. She said in cross-examination she found the eldest child to be a “normal two year old” who showed no signs of missing the mother, father, or youngest child.

8. When the eldest child began to live with the maternal grandmother in June 2011 he was withdrawn, shy, scared, and “would crawl up into a little ball” and refuse to communicate with people.[101] That evidence was apparently adduced by the maternal grandmother to prove how his treatment by the mother and/or father had adversely affected him. It did not. Rather, it proved the extent of the child’s emotional sufferance through the deprivation of his contact with the mother, father, and youngest child. The maternal grandmother’s failure to realise that reflects very poorly upon her. Even now, the maternal grandmother was quite uncertain about whether the eldest child’s enforced separation from the mother, father, and youngest child caused him emotional damage.

   [101] Maternal grandmother’s affidavit, paras 67-68

9. The maternal grandmother seems to have been intent on at least minimising the involvement of the mother and father in the eldest child’s life. She did nothing to ensure the eldest child’s interaction with the mother, father, or the youngest child. However, nor did the mother or father do anything to re-establish contact with the eldest child. There was an impasse for more than a year.

10. For the past few months the maternal grandmother, and sometimes her sister, remained present at the visits between the parties and the children, even though the orders made in October 2012 make no provision for supervision by her or them. At best, the maternal grandmother was ignorant of how her behaviour intimidated the mother and father and encroached upon their authority over the eldest child. At worst, she was cognisant and it was a deliberate ploy.

11. The maternal grandmother professed to being unable to comment on the role of the mother in the children’s lives,[102] which surely demonstrates that her level of insight into the importance of filial relationships is quite undeveloped.

    [102] Family Report, para 58

12. The father alleged the maternal grandmother had openly threatened to “cut [the eldest child] out of [the mother’s] life”.[103] Such an intention is illustrated by the maternal grandmother causing or permitting the eldest child to refer to her as “Mum”, Mr B as “Dad”, and the mother and father by their first names.[104] That has only occurred since the eldest child began to live with the maternal grandmother, before which he called her “Nan” and the mother “Mum”. The mother directed the maternal grandmother to ensure the eldest child called the parties by their correct appellation. Despite the maternal grandmother’s alleged best efforts, she has been unable to correct the child.[105] The eldest child refers to the paternal grandmother as “Grandma” so he is obviously capable of distinguishing between parents and grandparents. One wonders why the maternal grandmother has therefore encountered such difficulty instilling in the child the idea she is his grandmother.

    [103] Family Report, para 70

    [104] Family Report, paras 84, 92, 99, 101; Mother’s affidavit, para 71

    [105] Maternal grandmother’s affidavit, para 86

13. The Family Consultant correctly considered the maternal grandmother had permitted the eldest child’s understanding of family relationships to become “distorted” and she was “incapable of facilitating a realistic, clear and continuing relationship” for the eldest child with the mother.[106]

    [106] Family Report, para 123

14. The maternal grandmother deposed to her perception that the father was “struggling” to care for the youngest child.[107] Perhaps the surest outcome in this litigation was the retention of the youngest child’s residence with the father, as everybody eventually acknowledged by the orders they proposed. The maternal grandmother also told the Family Consultant she sought sole parental responsibility for the children simply because she believed “it would be easier for [her]”.[108] If those aspects of the maternal grandmother’s evidence were honest, it demonstrates profoundly unsophisticated insight.

    [107] Maternal grandmother’s affidavit, para 92

    [108] Family Report, para 59

Section 60CC(3)(j)

1. The issue of family violence has already been adequately addressed under s 60CC(2)(b) of the Act.

Section 60CC(3)(k)

1. Numerous family violence orders have applied in the past to either protect or bind the parties to the proceedings.[109]

   [109] Family Report, para 11; Mother’s affidavit, para 40

2. According to the evidence, there are no family violence orders currently in existence.

Section 60CC(3)(l)

1. It would certainly be preferable to make orders that are least likely to lead to the institution of further proceedings concerning the children. Neither the orders made, nor any of the proposals made by the parties and Independent Children’s Lawyer, increase or reduce the prospect of further litigation in respect of the children.

Section 60CC(3)(m)

1. Some concern was expressed about the implications of the eldest child living with the father – a person who is not biologically related to him – when two other biological relatives in the form of the mother and maternal grandmother both sought that he live with them. The Family Consultant was adamant that posed no problem, provided the father retained his strong commitment to the eldest child, of which I am satisfied. The most important consideration is the development of an emotional bond between the eldest child and the father, which I am satisfied already exists and will likely only solidify.

Conclusions and orders

1. The first consideration in the determination of parenting orders is the allocation of parental responsibility (s 61DA). The factors which dictate the allocation of parental responsibility for the children are different because the presumption of equal shared parental responsibility only applies in respect of “parents”. The circumstances of the children must therefore be analysed separately.

2. There are no reasonable grounds to believe that either the mother or father engaged in abuse of the children or family violence and, as such, the presumption of equal shared parental responsibility applies in respect of the youngest child (s 61DA(2)). Furthermore, nothing about the evidence suggests the presumption is rebutted (s 61DA(4)). On the contrary, the evidence suggests the allocation of equal shared parental responsibility would meet the youngest child’s best interests.

3. The mother and father have worked harmoniously in recent times to manage the children. They consensually varied interim orders to enable the youngest child to spend extra time with the mother and at altered times to meet their convenience. The father’s belief in his ability to co-operatively parent the children with the mother[110] was mirrored by the mother’s evidence. The mother described the father as a “fantastic father” during cross-examination. The Family Consultant observed their co-operation and heard them be complimentary of one another, which she found “very pleasing” and led her to conclude they could share parental responsibility.[111]

   [110] Father’s affidavit, paras 27-28

   [111] Family Report, paras 42, 69, 95, 107, 125, 131

4. The evidence proved the mother, father, and paternal relatives sat together outside court speaking convivially together. The paternal grandmother said she regarded the mother as her putative daughter. Those were powerful revelations given the usual tension that pervades litigation in this jurisdiction.

5. The mother unwisely retained the youngest child in January 2013, which mobilised the father to seek a recovery order, but that became unnecessary when the mother returned the youngest child to the father. She was remorseful for the mistake and the father sympathetically observed that he understood her “lapse of judgment” because she was missing the child. The incident caused only transitory rancour and has not disturbed their underlying trust in one another.

6. Since the presumption of equal shared parental responsibility applies and is not displaced in respect of the youngest child, there is no legislative room for the maternal grandmother to share in that parental responsibility, which is vested exclusively in the “parents”.

7. As for the eldest child, nothing is known of his biological father. It cannot be presumed he engaged in abuse or family violence and so the presumption of equal shared parental responsibility applies in respect of the eldest child also. However, in his case, the presumption of equal shared parental responsibility is rebutted because it would be impossible for the mother to consult a person she does not know and cannot find about important issues in the eldest child’s life.

8. The allocation of parental responsibility for the eldest child is necessarily linked to the determination about the parties who are to play the most important roles in his life. For reasons which will shortly be explained, the father and mother will have most involvement in his life so they will have equal shared parental responsibility for him, just as they do for the youngest child.

9. There is no warrant for the maternal grandmother’s exercise of parental responsibility in the eldest child’s life either. Since the eldest child has been in her care she has acted to hold the other parties at arms length by not allowing them to participate in any important decisions about him.[112] The maternal grandmother told the Family Consultant she was doubtful she could “communicate or negotiate directly” with the mother about the children[113] and the Family Consultant concluded the mother and maternal grandmother could not share parental responsibility.[114]

   [112] Mother’s affidavit, para 41

   [113] Family Report, para 59

   [114] Family Report, para 131

10. The pivotal determination ultimately required is as to the residential arrangements for the eldest child.

11. The maternal grandmother is the least suitable of the residential options. The Family Consultant never really entertained the prospect of the eldest child retaining his residence with the maternal grandmother. She acknowledged his change of residence would be distressing for him, but she regarded it as necessary. I accept that conclusion as correct. His mid to long term advancement justifies the short term grief of separation from the maternal grandmother.

12. The Family Consultant candidly said she would be:[115]

    …extremely concerned about the potential of further psychological harm and impaired family relationships if [the eldest child] was to remain in [the maternal grandmother’s] primary care.

    [115] Family Report, para 123

13. She was not seriously challenged about that opinion, which was wholly vindicated by the evidence.

14. Even hypothetical acceptance of the disappearance of Mr B from the maternal grandmother’s life did not cause the Family Consultant to revise that opinion. She said the emotional damage suffered by the maternal grandmother had been “pervasive and cumulative”. Her adverse life experiences stunted her capacity for insight and empathy, depriving her of the ability to adequately care for the eldest child. Although the maternal grandmother’s abstinence from illicit drug use was a positive step, that in itself did not redress the disadvantage of the residential care she offered the eldest child. She could not provide the “safe and responsive parenting environment” needed by the eldest child. That is to say nothing of the risk of their subjection or exposure to abuse and family violence in her household.

15. As for the mother and father, there are both advantages and disadvantages for the eldest child living with either of them, but the disadvantages are less significant than those presented by the maternal grandmother.

16. The Family Consultant initially recommended the eldest child live with the mother,[116] but once informed of recent developments and current circumstances she resiled from that recommendation and instead tended to recommend the eldest child live with the father. She considered the father’s “emotional resources” had improved and the mother’s “practical resources” had reduced, by which she meant the mother’s availability to the eldest child was compromised by her commitment to work and study.

    [116] Family Report, para 132

17. The father could capably provide for all of the physical, emotional and intellectual needs of the children. Although there is some risk his parenting capacity would be overwhelmed by the responsibility of caring for two young children on a full-time basis, the risk is not pronounced. He has coped satisfactorily with the youngest child, he is eager to also have the eldest child with him, he is alive to the difficulty of the challenges ahead, and he has the capable support of the paternal grandmother and his sister to fall back on. The evidence supports the conclusion that the father would cope with the parenting load of two young children, despite the asserted reservations of the mother.

18. If the eldest child lives with the father the children will be able to consolidate their sibling relationship, of which they have been deprived for the last two years. The Family Consultant understandably regards that as a significant advantage.[117] Their closeness in age will see them progress through the same school only a year apart, probably enjoying the same circle of friends, perhaps even playing sport in the same teams. Their sibling relationship will perhaps become the most important relationship of their lives into adulthood.

    [117] Family Report, para 129

19. The children will also be able to readily explore and enjoy their indigenous heritage while living in the fold of the paternal family.

20. The eldest child would receive individual parenting if he lived with the mother, but that may not be the therapeutic salve it ordinarily would be because the Family Consultant contemplated the possibility the child’s attachment to the mother was “disorganised” and the mother’s attention would be diverted away from him to some extent by her work and study commitments. In addition, the child’s relationship with his sibling would be permanently confined to weekends and holidays.

21. Interestingly, the frequency of the mother’s visits with the children abated over the last few months. The mother alleged that was because the father restricted the visits, but I do not accept that evidence as it is contrary to the father’s nature and inconsistent with his past promotion of the children’s relationships with her. The father said the mother scheduled the visits less often,[118] the reason for which remains unknown. Whatever the explanation, the phenomenon is most likely indicative of the mother’s higher prioritisation of other interests in her life.

    [118] Father’s affidavit, paras 246, 253

22. The mother, through her pursuit of employment and additional qualifications, will be an exemplary role model to the children, but that will be apparent to them irrespective of whether they live with her or see her regularly.

23. The mother admitted her satisfaction that the children would be safe and well cared for if they both lived with the father. The maternal grandmother was also impelled to concede the father had “done a good job raising [the youngest child]”.

24. On balance, I am persuaded the eldest child’s best interests are served by orders that provide for him to live with the father and spend substantial and significant time with the mother. It is also desirable for his relationship with the maternal grandmother to be retained, but for that relationship to fall back in priority behind his relationships with the father and the mother.

25. The Family Consultant recommended a swift rather than gradual residential change for the eldest child, which advice I adopt. The eldest child is familiar and comfortable with the father and his sibling. It is desirable for a clear routine to be established immediately. A gradual transition from the maternal grandmother to the father would likely produce confusion for the eldest child.

26. It was common ground between the father and mother that, notwithstanding with which of them the children live, the children should spend alternate weekends with them and share holidays between them. I agree that is a suitable regime that will meet the children’s best interests and the orders so provide. Special provision is made for the children to share the Christmas period, Father’s Day, and Mother’s Day equitably with the father and mother.

27. As a measure of his commitment to promotion of the children’s relationships with the mother, the father offered to drive the children to and from their visits with the mother in Sydney until she attained her licence. That, however, seems unnecessary. The proposal for the mother and father to exchange the children at H railway station was meritorious.[119] The father could reach that destination easily by either train or car. The mother could also easily reach that destination by train from either her home or place of work. The mother agreed H was the most appropriate venue for changeovers.[120] The times at which the children are to be exchanged are designed to meet the convenience of the parties when they are to travel some distance from opposite directions to meet one another.

    [119] Exhibit F7, Order 8

    [120] Amended Application, Order 8

1. The mother will likely soon have accumulated sufficient driving practice to take the test for the grant of her driver’s licence. When she attains her licence the parties will have greater flexibility about the venues for exchange of the children between them.

2. The orders provide for the children to spend approximately one day per month with the maternal grandmother. It was contended for the maternal grandmother that the children’s visits to her once per month would be insufficient and would amount to “a complete disruption or severance of their bond” with her, but I do not accept that submission. A regime of monthly visits by the children with the maternal grandmother was uniformly proposed by the father, the mother, and the Independent Children’s Lawyer.[121]

   [121] Exhibit F7, Order 6; Amended Application, Order 7; Exhibit ICL3, Order 5

3. Assuming the children spend time with the maternal grandmother together, and there was no suggestion they should not, the Family Consultant said there are two competing considerations in determining the frequency of the children’s interaction with the maternal grandmother. One is the maintenance of the eldest child’s relationship with her and the other is the promotion of the eldest child’s relationships with the father and mother. I accept it is most important to support the stability of the child’s relationship with his primary carer and since the father will be his primary carer his relationship with the father is the dominant consideration. It is also important for the eldest child to re-forge his relationships with the mother and the youngest child.

4. I agree with the Family Consultant’s evidence that the eldest child’s relationship with the maternal grandmother should take its place in his life as an ordinary grandparental relationship, ranking less importantly than the relationships he enjoys with his primary carer and his mother. Monthly visits satisfactorily achieve that outcome.

5. I reject the notion the children should be supervised when with the maternal grandmother, either at a contact centre[122] or by the paternal grandmother, as was suggested in final submissions by the father. The Family Consultant mooted the imposition of supervision as a possibility,[123] but confinement of the children’s intermittent visits to the maternal grandmother to several hours duration on each occasion, on condition of Mr B’s absence, will suffice to attenuate the risk of harm in her care.

   [122] Exhibit F7, Order 6(a)

   [123] Family Report, para 133

6. The venue for exchange of the children between the father and the maternal grandmother is the F railway station, which is in reasonable proximity to the father’s home in the south western suburbs of Newcastle. That venue enables the parties’ convenient use of public transport if they are unable to resort to private transport and agree upon alternate venues for exchange.

7. Provision is made for the children to have regularly frequent telephone communication with each of the parties. That was not controversial.

8. A series of injunctions bind the parties, none of which are or should be controversial. The children cannot be exposed to Mr B, cannot be chastised physically, cannot be exposed to the parties’ denigration of one another, and must be encouraged to call only the mother and father by the terms of endearment “Mum” and “Dad”.

9. Orders are made compelling the mother and father to arrange the children’s paediatric assessment. Those orders replicate interim orders, which have not yet been the subject of compliance.[124] The father and maternal grandmother both acted to obtain referrals for the children, albeit without the urgency with which they should have acted, but the paediatric appointments have not occurred due to the waiting lists in public hospitals.[125]

   [124] Orders 1.15 and 1.16 made on 8 October 2012

   [125] Family Report, paras 90, 111; Exhibits MGM1, ICL1, ICL2

10. Orders are made requiring the children to be enrolled in and to attend at an early childhood learning centre. Those orders also replicate interim orders.[126] Both children were enrolled at early childhood learning centres pursuant to the interim orders, but it is vital their enrolment and attendance be maintained for their advancement and socialisation.

    [126] Orders 1.11 and 1.12 made on 8 October 2012

11. Copies of the orders, the reasons for the orders, and the Family Report may be provided to any therapist engaged to provide therapy to any party or the children, consonantly with the father’s proposal.[127] All but the mother agreed to that proposal. The mother generally agreed to an order in those terms, but proposed the order be restricted to only permit publication of those documents to an “appropriate counsellor”, which gloss I reject. The mother’s submission was not meaningfully elaborated. Who would determine the identity of such an appropriate counsellor? How would the determination of “appropriateness” be made? Those questions were unanswered. The relevant counsellor would not likely be engaged by the mother or father, for themselves or the children, unless the counsellor was deemed to be fit for purpose.

    [127] Exhibit F7, Order 13

12. I decline to make injunctive orders about the consumption of illicit drugs and liquor.[128] The parties should know it is an offence to consume illicit drugs at any time without needing to be informed by order of this Court and enforcement of an injunction precluding excessive consumption of alcohol is impossible because such an order is aspirational rather than prescriptive. Who decides what is “excessive” and how is it determined? There is no utility in making meaningless orders.

    [128] Exhibit F7, Orders 11-12; Amended Application, Orders 17-18

13. The Independent Children’s Lawyer sought an order compelling the mother and father’s engagement in “individual therapeutic counselling” as recommended by the Family Consultant.[129] No such order is made because the Court lacks the power to make final unconditional orders of that sort (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]).

    [129] Family Report, para 136

14. The orders set out at the commencement of these reasons serve the children’s best interests.

I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 June 2013.

Associate: 

Date:  26 June 2013