Peterson and Powell and Ors

Case •

[2018] FamCA 504

•

6 July 2018

FAMILY COURT OF AUSTRALIA

PETERSON & POWELL & ORS [2018] FamCA 504

FAMILY LAW – CHILDREN – Parental responsibility – where the presumption of equal shared parental responsibility for the children is rebutted – Where the mother and father of the eldest child abdicated their responsibilities in favour of the maternal great grandmother and paternal grandmother – Where the father of the youngest child did not engage with the litigation and his family violence rendered the presumption inapplicable – Ordered the maternal great grandmother shall have sole parental responsibility for both children.

FAMILY LAW – CHILDREN – With whom a child lives – Where the children derive the most benefit from their relationships with the maternal great grandmother and paternal grandmother – Where the children’s physical and emotional safety must be prioritised – Where the children are at risk of harm within the maternal great grandmother’s home by reason of their exposure to family violence between the mother and her various partners but, with the mother excluded from the home, the risk has subsided – Ordered the children shall live with the maternal great grandmother – Ordered restraints on the maternal great grandmother from allowing the mother to attend her home and from allowing the children to be in the unsupervised company of the mother.

FAMILY LAW – CHILDREN – With whom a child spends time – Where the paternal grandfather was prosecuted for and convicted of sexual misconduct with an unrelated female child – Concluded the father’s proven sexual misconduct with a minor and his younger brother’s alleged sexual misconduct with the eldest child comprises a sufficient evidentiary foundation to find the children remain exposed to the risk of harm in the paternal grandmother’s home – Concluded the paternal grandmother could successfully protect the children during only confined visits – Ordered the children shall spend time with the paternal grandmother each alternate weekend – Ordered restraints on the paternal grandmother from allowing the children to remain in the unsupervised company of the father or paternal uncle and from allowing the children to be in the company of the paternal grandfather at all.
Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Family Law Act 1975 (Cth) ss 60CC, 61DA, 65C, 69C, 91B
Family Law Rules 2004 (Cth) rr 1.12, 6.02
Allesch v Maunz (2000) 203 CLR 172
Taylor v Taylor (1979) 143 CLR 1
APPLICANT: Ms Peterson
1st RESPONDENT: Mr Powell
2nd RESPONDENT:

Ms Powell
3rd RESPONDENT: Ms Cullen
INTERVENER: Secretary, NSW Department of Family & Community Services
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle
FILE NUMBER: NCC 2163 of 2016
DATE DELIVERED: 6 July 2018
PLACE DELIVERED: Newcastle
PLACE HEARD: Newcastle
JUDGMENT OF: Austin J
HEARING DATE: 4, 5 & 6 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable
SOLICITOR FOR THE APPLICANT: Not Applicable
COUNSEL FOR THE 1ST RESPONDENT: Not Applicable
SOLICITOR FOR THE 1ST RESPONDENT: Not Applicable
COUNSEL FOR THE 2ND RESPONDENT: Mr Guyder
SOLICITOR FOR THE 2ND RESPONDENT: Virginia Taylor Partners
COUNSEL FOR THE 3RD RESPONDENT: Not Applicable
SOLICITOR FOR THE 3RD RESPONDENT: Not Applicable
COUNSEL FOR THE INTERVENER: Mr McGorey
SOLICITOR FOR THE INTERVENER: Crown Solicitor’s Office
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carty
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

Orders

  1. All former orders relating to the following children (“the children”) are discharged:

    (a)X, born … 2013; and

    (b)Y, born … 2014.

  2. The third respondent (“the maternal great grandmother”) shall have sole parental responsibility for the children.

  3. The children shall live with the maternal great grandmother.

  4. The maternal great grandmother is restrained from:

    (a)Allowing the applicant (“the mother”) to live in, attend or remain at her home;

    (b)Allowing the children to be or remain in the company of the mother, unless personally supervised by her or her daughter, Ms B; and

    (c)Allowing the children to be or remain in the company of Mr C.

  5. The maternal great grandmother and the second respondent (“the paternal grandmother”) shall take all reasonable steps to ensure the children spend time with the paternal grandmother each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday, commencing on the first Saturday after these orders.

  6. The paternal grandmother is restrained from:

    (a)Allowing the children to be or remain in the company of the first respondent (“the father”), unless personally supervised by her;

    (b)Allowing the children to be or remain in the company of the paternal uncle, Mr D Powell, unless personally supervised by her; and

    (c)Allowing the children to be or remain in the company of the paternal grandfather, Mr E Powell.

  7. Pursuant to s 68B of the Family Law Act, the mother, father and paternal grandmother are each restrained from entering upon or approaching within 100 metres of any pre-school or school attended by either child.

  8. Pursuant to s 68B of the Family Law Act, the mother and father are each restrained from entering upon or approaching within 100 metres of the maternal great grandmother’s residence.

  9. For the purpose of implementing Orders 3 and 5, the maternal great grandmother and the paternal grandmother or their nominees shall exchange the children at the McDonald’s Restaurant at F Town, NSW.

  10. Each party is restrained from denigrating any other party in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating any of the other parties.

  11. The maternal great grandmother shall authorise and request the principal of any pre-school or school attended by the children to provide to the paternal grandmother, at her expense, copies of all school reports and school photograph order forms relating to the children.

  12. The maternal great grandmother and paternal grandmother shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.

  13. 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.

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

  15. Costs are reserved for 28 days.

  16. Any and all outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peterson & Powell and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2163 of 2016

Ms Peterson

Applicant

And

Mr Powell

1st Respondent

And

Ms Powell

2nd Respondent

And

Ms Cullen

3rd Respondent

And

Secretary, NSW Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

  1. These proceedings relate to two children borne by the applicant (“the mother”) in 2013 and 2014 to two different fathers, who are now aged five and three years respectively. All aspects of both children’s care were in dispute.

  2. The first respondent (“the father”) is the father of the eldest child and the second respondent (“the paternal grandmother”) is that child’s grandmother. Neither is biologically related to the youngest child.

  3. The biological father of the youngest child (“Mr B”) was not joined to the proceedings as a party, even though orders in respect of her were sought by the father, paternal grandmother, and the Secretary of the NSW Department of Family and Community Services (“the intervener”). The failure to join Mr B to the proceedings would ordinarily cause his deprivation of procedural fairness, but he was at least served with process to inform him of the proceedings. Notwithstanding such knowledge, he elected not to intervene as a party. 

  4. The third respondent (“the maternal great grandmother”) is the maternal great grandmother of both children.

Standing

  1. Absent any biological connection with the youngest child, both the father and paternal grandmother needed to establish their standing to seek orders about her.

  2. The father’s standing to apply for orders in respect of the youngest child was questionable because there was little evidence about the extent of his concern with her care, welfare or development (ss 65C(c), 69C(2)(d)). It was unnecessary to determine his standing because he failed to appear at trial and seek any orders.

  3. The paternal grandmother had standing to seek orders in respect of the youngest child because she deposed, without challenge, she has been involved in the youngest child’s life since she was born[1] and she contended she is the child’s “psychological grandparent”,[2] from which premise it could fairly be concluded she is concerned with her care, welfare and development (ss 65C(c), 69C(2)(d)). It was not contended otherwise.

    [1] Paternal grandmother’s affidavit, paras 12-23

    [2] Memorandum, page 3

  4. Although the maternal great grandmother is biologically connected to both children, her generational separation from them required her to establish her standing to seek orders in respect of them. She had standing because they live with her and so she is certainly concerned with their care, welfare and development (ss 65C(c), 69C(2)(d)).

Procedural fairness

  1. Parenting orders in respect of a child should usually only be made if the child’s parents are joined as parties to the proceedings. The Family Law Rules 2004 (Cth) (“the Rules”) define the parents of the subject child as “necessary parties” (r 6.02(2)(a)) and require their joinder to the proceedings (r 6.02(3)), subject to dispensation (r 1.12).

  2. The youngest child intermittently spends time with Mr B and his parents,[3] so he maintains some degree of interest in the child. When the mother began these proceedings, she sought orders in respect of only the eldest child, so she had no reason to join Mr B to the proceedings. However, when the father and paternal grandmother joined issue over the parenting orders to be made in respect of the eldest child, they expanded the dispute by seeking additional orders in respect of the youngest child.[4] The intervener did the same thing.[5] Even though they each sought orders in respect of the youngest child, none of them joined Mr B to the proceedings at any time prior to trial, as they should have done. They were alerted to the oversight several times in February 2017,[6] June 2017,[7] and August 2017,[8] but did nothing about it.

    [3] Maternal great grandmother’s second affidavit, para 7

    [4] Father’s Response 16/2/18; Paternal grandmother’s Amended Response 16/2/18

    [5] Intervener’s Response 20/2/18

    [6] Notation B made on 3/2/17

    [7] Notation D made on 15/6/17

    [8] Order 4(b) made on 11/8/17

  3. Notwithstanding, Mr B is still well aware of the proceedings. The paternal grandmother served him in October 2016 with copies of her Response, affidavit, and the earlier interim orders made by the Court in respect of the eldest child.[9] Then later, in May 2017, Mr B filed a Parenting Questionnaire in the proceedings. More recently, in March 2018, the intervener served Mr B with filed documents[10] and, in April 2018, the paternal grandmother served him with more filed documents.[11]

    [9] Affidavit of Mr G filed 24/10/16

    [10] Exhibit INT1

    [11] Exhibits 2R1, 2R2

  4. In the circumstances, Mr B was not deprived of his chance to be heard. Although he was not joined as a party to the proceedings when he should have been, he knew the proceedings were in train and elected not to intervene, which election effectively cured any procedural unfairness. The Court was not required to indefinitely delay the proceedings merely because Mr B eschewed the opportunity to actively participate (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4). No party sought an adjournment and the trial proceeded.

Background

  1. The mother and father were in a relationship until 2013. The mother then began her relationship with Mr B, but that relationship ended during the mother’s pregnancy, prior to the youngest child’s birth in 2014.

  2. Until recently, the mother and the children lived with the maternal great grandmother, who was principally responsible for meeting the children’s day-to-day needs. Arrangements were voluntarily made for both children to spend time with the paternal grandmother.

  3. In August 2016, the paternal grandmother refused to return the children to the mother. The police were called to intercede, following which the youngest child was surrendered to the mother, but the paternal grandmother kept the eldest child. The mother then commenced these proceedings in the Federal Circuit Court of Australia for orders in respect of only the eldest child.

  4. The Federal Circuit Court made some interim parenting orders in respect of the eldest child in August 2016. Essentially, the orders provided for the child to live with the mother (provided she lived with the maternal great grandmother), to spend substantial time with the paternal grandmother, and to spend time with the father (but only when supervised by the paternal grandmother). The orders were the subject of consent given by the mother, father, and paternal grandmother. The maternal great grandmother appeared that day, legally represented by a duty solicitor, and the Court ordered that she be “added to the proceedings and be named as the third respondent”.[12] She has since participated in the proceedings as a respondent and the validity of that order has never been debated.

    [12] Order 1 made on 31/8/16

  5. In October 2016, the Federal Circuit Court requested the intervener to intervene in the proceedings pursuant to s 91B of the Family Law Act 1975 (Cth) and then transferred the proceedings to this Court for determination, noting that Mr B “shall be named the fourth respondent” in the proceedings. Obviously enough, the Court’s notation to that effect did not achieve Mr B’s joinder to the proceedings. That could only be accomplished by him being named as a respondent to and served with an application made by an existing party to the proceedings or by him successfully seeking leave to intervene.

  6. The proceedings were first fixed for trial in August 2017. At that time it appeared as though the father and paternal grandmother had disengaged from the litigation but, when they signified their re-engagement, the trial date was vacated and a Family Report was ordered. The intervener later intervened in the proceedings pursuant to the earlier invitation. In February 2018, the proceedings were re-listed for trial in June 2018.

  7. In March 2018, the mother and her boyfriend moved away from Region H and left the children in the care of the maternal great grandmother. The children have lived with the maternal great grandmother ever since.

  8. At trial, there was no appearance by or on behalf of either the mother or father. It was accepted they could not be the residential carers of the children or the repositories of parental responsibility for them, so the contest was between the paternal grandmother and maternal great grandmother. The intervener and Independent Children’s Lawyer generally supported the maternal great grandmother’s proposal. No adjournment of the trial was sought on account of the mother’s and father’s absence.

Proposals

  1. In the voluntary absence of the mother and father, their applications and evidence were ignored.

  2. The paternal grandmother abandoned the orders set out in her Amended Response filed on 16 February 2018 and instead sought the orders set out in the minute of orders she tendered when the evidence closed.[13] She wanted sole parental responsibility for the children and for them to live with her. She proposed that they spend alternate weekends with the maternal great grandmother and no time at all with the mother. She abandoned her former proposal for the children to spend an unregulated amount of time with the father under her supervision, which was somewhat artificial because he lives with her. Instead, she proposed the father be excluded from her home while the children live with her, which belated proposal was inconsistent with her evidence to the effect the father lives with her and she expects he will continue to do so.

    [13] Exhibit 2R4

  3. The maternal great grandmother abandoned the orders proposed in her Response filed on 17 January 2018. She instead sought orders to the effect that the children live with her and, inferentially, that she have sole parental responsibility for them. She proposed that both children spend time with the paternal grandmother in school holiday periods and that, during school terms, the eldest child spend alternate weekends with the paternal grandmother and the youngest child spend corresponding weekends with Mr B’s parents. She proposed no particular order regulating the children’s interaction with the mother, but implicitly her proposal mirrors current arrangements – the children only see the mother under supervision when she considers it appropriate.

  4. The intervener abandoned the orders set out within his Response filed on 20 February 2018 and instead sought the orders set out in the amended minute of orders he tendered at the close of evidence in the trial.[14] His proposal correlated with the maternal great grandmother’s application. He proposed she have sole parental responsibility for the children and that the children live with her. He proposed the eldest child spend limited time with the father under the paternal grandmother’s supervision and that the youngest child spend even less time with Mr B under the supervision of the maternal great grandmother or some other reliable supervisor. He proposed that both children visit the mother fortnightly under the maternal great grandmother’s supervision. He trusted the maternal great grandmother and paternal grandmother to reach their own agreement about the time spent by the children with the paternal grandmother, without the need for any prescriptive orders.

    [14] Exhibit INT4

  5. The Independent Children’s Lawyer sought the orders set out in the amended minute of orders she tendered at the close of evidence in the trial.[15] Her proposal also correlated with the maternal great grandmother’s application. She proposed the maternal great grandmother should have sole parental responsibility for the children and that the children live with her. She proposed that the children spend time with the mother under the maternal great grandmother’s supervision for two sessions of four hours duration each alternate weekend. She proposed the children spend time with the paternal grandmother each intervening weekend, during which time the children could spend time with the father under the paternal grandmother’s supervision.

    [15] Exhibit ICL6

Evidence

  1. The paternal grandmother relied upon:

    (a)Her affidavit filed on 20 April 2018; and

    (b)The affidavit of service filed by Mr G on 24 October 2016.

  2. The maternal great grandmother relied upon her two affidavits filed on 17 January 2018 and 20 April 2018. She did not file any affidavit by her proposed witness, pursuant to the leave granted.[16]

    [16] Order 8(b) made on 26/2/18

  1. The intervener relied upon the affidavit of his case worker, Ms J, filed on 26 April 2018, together with a culled schedule of exhibit documents, some of which were referred to in the affidavit.[17]

    [17] Exhibit INT3

  2. The parties and Independent Children’s Lawyer also relied upon:

    (a)The Memorandum prepared by the Family Consultant on 4 October 2016; and

    (b)The Family Report prepared by the Family Consultant on 12 December 2017.

Legal principles

  1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

  2. 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 the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

  3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (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 significant issues (s 65DAE).

  4. 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 child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

  5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, 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). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests – primary considerations

Section 60CC(2)(a)

  1. The Act obliges the Court to consider, as primarily important, the benefit the children would derive from having meaningful relationships with their parents. Obviously, the paternal grandmother and maternal great grandmother are not the children’s parents, so the nature of the children’s respective relationships with them may only be considered under s 60CC(3)(b)(ii) of the Act.

  2. Neither the mother, father, nor Mr B could sustain their interest in the proceedings. While the eldest child’s relationships with the mother and father are probably significant to her and, similarly, the youngest child’s relationships with the mother and Mr B are probably significant to her, the children do not appear to presently derive much benefit from their respective filial relationships. The children’s relationships with the maternal great grandmother and paternal grandmother, who have historically provided the bulk of their care, are the most important in their lives.

  3. Given the abundant evidence about the limitations upon the parenting capacity of the mother, father, and Mr B, about which there was no dispute at all, there is little that can now be done to help the children acquire more meaningful relationships with their parents. Their physical and emotional safety must be prioritised.

Section 60CC(2)(b)

  1. The children have been at risk of harm through sexual abuse within the paternal grandmother’s home. So much was uncontroversial. The controversy centred on whether or not the children are still at risk of harm through sexual abuse in the paternal grandmother’s home.

  2. The paternal grandfather lived at the same residential property as the paternal grandmother until February 2017. Until then, the paternal grandmother turned a blind eye to his paedophilic proclivities. She knew of numerous allegations of sexual molestation made against him by several young girls over about 20 years. His alleged victims include an unknown child of less than 10 years of age (in 1996),[18] his own daughter (in about 1998),[19] his niece (in about 2009),[20] the eldest child (in about October 2016),[21] and an unrelated female child aged eight years (in January 2017).[22]

    [18] Family Report, para 69

    [19] Exhibits ICL4, ICL5

    [20] Exhibits ICL4, ICL5

    [21] Affidavit of Ms J, paras 24-29; Exhibit INT3, tab 1

    [22] Exhibit ICL4

  3. There can be no doubt at all about the veracity of the last victim’s allegation because the paternal grandfather was prosecuted for and convicted of sexual misconduct with her.[23] Although the paternal grandfather has not been charged with any sexual molestation of the eldest child arising from the allegations she made against him in October 2016, more recent allegations she made against him are still being formally investigated.[24]

    [23] Paternal grandmother’s affidavit, paras 74-77

    [24] Affidavit of Ms J, paras 32-33; Exhibit INT3, tab 1

  4. The paternal grandmother knew of all those allegations at or about the time they were made, but accepted as true the paternal grandfather’s denials of any impropriety. The paternal grandmother did not even report the eldest child’s allegation to the authorities when she first made it to her in 2016. Her failure to do so was constructive concealment. All the while, she was trying to reconcile her relationship with the paternal grandfather, which had been faltering since 2015.

  5. The father certainly believes the paternal grandfather sexually abused the eldest child[25] and the paternal grandmother at least suspects it is true.[26] She now even suspects the paternal grandfather might have sexually abused their own 12 year old daughter. She admitted she “might have been” or “probably was” in denial about the truth of the allegations, for which she said “I hate myself”. She said the paternal grandfather’s adult daughter still blames her for not protecting her from his sexual abuse. She is now implacably opposed to any interaction between the children and the paternal grandfather but her refusal to allow the children to have any contact at all with him will only help alleviate, not eradicate, the risk of their harm. While the paternal grandmother might regret her wilful blindness to or reckless disregard of the danger posed by the paternal grandfather, other aspects of her evidence caused just as much disquiet about the level of her insight because she remained defiant about residual risks of harm for the children.

    [25] Family Report, para 20

    [26] Family Report, para 114

  6. The father was convicted in 2012 for committing an act of indecency with a child under the age of 16 years, for which he was registered on the NSW Child Protection Register.[27] Despite the unimpeachable inference of guilt flowing from his conviction, he and the paternal grandmother both refute his guilt. The father told the intervener’s case workers he “got done [for the offence] because he kissed the bitch back”,[28] but the victim’s allegations against him were much more serious than that.[29] The paternal grandmother still believes he did nothing wrong. She told the case workers “everyone knows” the father should not have been convicted.[30] The Family Consultant’s original opinion that the father did not minimise his past behaviour[31] is not a conclusion which correlates with the evidence. She recanted her opinion when alerted during cross-examination to the tenor of the evidence adduced at trial and she agreed he in fact did minimise his responsibility for the sexual offence in 2012.

    [27] Family Report, paras 70-71

    [28] Exhibit INT3, tab C

    [29] Exhibit ICL2

    [30] Exhibit INT3, tab C

    [31] Family Report, para 77

  7. The father’s younger brother (who is now 14 years of age) may have sexually molested the eldest child because she told the maternal great grandmother, in October 2016[32] and again in May 2018, that he interfered with her. At least one allegation involved the paternal uncle touching her on the bottom while they were laying together on a mattress. At least the most recent allegation is apparently still under active investigation. During her cross-examination, the paternal grandmother flatly rejected any impropriety by her son, merely because she said he always stays in his own room, which hardly seems an alibi that unconditionally precludes his guilt. She told the intervener’s case workers she believes the eldest child’s allegations against her younger son were concocted by the mother or the maternal great grandmother. She told the intervener’s case workers she does not believe any improper physical contact occurred between the eldest child and her son and she is now “worried” the unresolved allegations might wrongly implicate him.[33] Her worry does not seem to extend to the consequences for the eldest child if she was indeed sexually molested.

    [32] Family Report, para 24

    [33] Exhibit INT3, tab C

  8. The father’s proven sexual misconduct with a minor and his younger brother’s alleged sexual misconduct with the eldest child comprises a sufficient evidentiary foundation to find the children remain exposed to the risk of harm through their subjection to sexual abuse in the paternal grandmother’s home, since the father and his younger brother live with her and apparently intend to continue doing so. The Independent Children’s Lawyer correctly contended, and the Family Consultant unsurprisingly conceded, the paternal grandmother has a “blind spot” about the risk of harm posed to the children by the father and his younger brother.

  9. Logically, it would be challenging for her to protect the children against that risk of harm when she believes no such risk exists, but the maternal great grandmother, intervener, and Independent Children’s Lawyer were all satisfied the paternal grandmother could successfully protect the children if the visits were confined to alternate weekends. The Independent Children’s Lawyer submitted the paternal grandmother would be motivated to supervise her sons diligently to obviate any further malicious or false allegations against them.

  10. The maternal great grandmother certainly trusts the paternal grandmother to ensure the children are protected from the risk of physical and emotional harm posed to them by the father and paternal grandfather. She proposed the paternal grandmother as a reliable supervisor of the father and believes she will not let the paternal grandfather near the children.[34] At least so far as she is concerned, the risk of harm she alleges is posed by the father to the children is satisfactorily ameliorated by the supervision order. However, neither the intervener nor the Independent Children’s Lawyer were satisfied with only the precaution of the children’s supervision when spending time with the father. They each proposed additional injunctions directed to the paternal grandfather and the paternal uncle. Making orders of that type is the safer and wiser course to adopt.

    [34] Family Report, para 104

  11. In the past, the children have been at risk of harm within the maternal great grandmother’s home by reason of their exposure to family violence between the mother and her various partners but, with the mother now excluded from the home, the risk has subsided. The paternal grandmother’s proposal for the mother to be shut out of the children’s lives entirely[35] was an unreasonably severe reaction to her parenting defects, even though her proposal enjoyed some equivocal support from the Family Consultant.[36] The injunctions proposed by the intervener and Independent Children’s Lawyer to proscribe the children’s interaction with the mother are an adequate response, which the Family Consultant impliedly conceded in her report[37] and then expressly conceded in cross-examination.

    [35] Amended Response filed 16/2/18, Orders 3, 8, 9

    [36] Family Report, paras 179, 180

    [37] Family Report, para 182

Child’s best interests – additional considerations

  1. The paternal grandmother and father both admitted to the Family Consultant the children should remain living with the maternal great grandmother, provided she can protect them from the mother.[38] However, they doubted she could protect the children from the mother. Their doubts were endorsed by the Family Consultant, who concluded the maternal great grandmother’s capacity to prioritise the children’s needs over those of the mother was “highly questionable”.[39] She surmised the children may need to instead live with the paternal grandmother, if the mother cannot be removed from the maternal great grandmother’s home.[40]

    [38] Family Report, paras 27, 30, 40, 75, 116

    [39] Family Report, paras 32, 39, 171, 172

    [40] Family Report, paras 165, 182

  2. Of course, the doubts expressed by the Family Consultant, paternal grandmother, and father about the maternal great grandmother’s ability to protect the children from the mother are not proof of the fact. It is only evidence of their scepticism. Evidence of the maternal great grandmother’s conduct and attitude carries the most probative value and the evidence objectively proved, on the balance of probabilities, she is capable of resisting the mother’s demands and protecting the children when necessary. The following examples illustrate the finding:

    (a)In May 2017, the mother demanded to take the children away from the maternal great grandmother’s home. She was intoxicated so the maternal great grandmother refused to allow it. The police were called and they supported the maternal great grandmother’s decision.[41]

    (b)In June 2017, the maternal great grandmother and mother argued over the mother sending nude pictures of herself to other people. The maternal great grandmother objected to the propriety of the mother’s conduct and told her so.[42] She stood up to the mother, despite it causing rancour between them.

    (c)In January 2018, the maternal great grandmother asked the mother “to be a mother” to the children, by which she inferred the mother should behave like a parent rather than a drug-dependent concubine. The mother was so incensed by the criticism she called emergency services for help,[43] which decision only accentuates the concern about her grip on reality, since emergency services could not help resolve her indignation.

    (d)In February and March 2018, the maternal great grandmother and mother met with the intervener’s case workers to discuss the children’s future living arrangements in the context of the mother’s drug use and mental health.[44] The mother was informed her lifestyle was antithetical to the children’s best interests. The maternal great grandmother told the mother she needed to undertake drug rehabilitation and sever her relationship with her current boyfriend (“Mr C”), but the mother refused. She said she would rather move out of the maternal great grandmother’s home if necessary.

    (e)In March 2018, the mother collected Mr C upon his release from gaol and returned to the maternal great grandmother’s home to ask permission for them both to resume residence in the house. Mr C waited in the car. The maternal great grandmother refused, so they left and have not since returned.

    (f)The mother and Mr C then left town for nearly two months, but they returned several weeks ago. The mother has either seen or spoken to the children every day, but the maternal great grandmother only allows the children to see the mother under her supervision or that of her daughter (the children’s paternal great aunt), at places other than the maternal great grandmother’s home. The children have not seen Mr C at all because the maternal great grandmother and the intervener’s case workers do not believe it is safe for them.[45]

    (g)The maternal great grandmother credibly said in cross-examination she suspects the mother is still using drugs, she will not allow the children to see the mother if she believes she is intoxicated, she will not let the mother back into her house to live (regardless of whether she terminates her relationship with Mr C), and she would submit to injunctions which permanently restrain her from allowing the mother to live in her home with the children or to spend time with them inside her home. She said the mother’s “drug use” and “mental health” prevents her from living with them. She said the mother would have the alternatives of either living with other members of the extended maternal family or at a caravan park in a caravan she would loan her. The maternal grandmother’s suspicion about the mother’s continuing illicit drug use is correct.[46]

    [41] Family Report, paras 16, 61

    [42] Family Report, paras 17, 62

    [43] Affidavit of Ms J, para 124

    [44] Affidavit of Ms J, paras 125-129

    [45] Family Report, para 67

    [46] Exhibit INT3, tab D

  3. The maternal great grandmother unwisely defended the mother against justified criticism in the past, but she was only trying to reconcile her protection of the children with her support of the mother. The mother was troubled and needed her help. When it became clear to her those objectives were irreconcilable, she prioritised the children’s safety, for which she deserves commendation, not condemnation for formerly trying to achieve both objectives.

  4. The intervener’s case worker still entertains “some concern” about the maternal great grandmother’s capacity to protect the children from the mother but, overall, the intervener regards the children to be safe and not at risk of harm in the maternal great grandmother’s care, provided the mother and Mr C do not live with them.[47] Importantly, the intervener’s prior conclusions about the children’s exposure to the risk of harm flowed from and were connected to their common residence with the mother.[48] That residential arrangement no longer applies and, given acceptance of the maternal great grandmother’s evidence about her commitment to the children’s safety, will not apply again. The case worker said she believed the maternal grandmother would comply with any injunction restraining her from allowing the mother to live with her. The maternal great grandmother has complied with all Court orders to date, so such confidence in her does not appear misplaced.

    [47] Affidavit of Ms J, para 118

    [48] Affidavit of Ms J, paras 65, 67, 77, 80, 82, 84, 92, 115, 118; Exhibits 2R11, 2R13, INT3, tab 2

  5. The paternal grandmother is not a comparable residential alternative to the maternal great grandmother for the children. Her lack of insight about the sexual danger previously faced by the children in the company of the paternal grandfather and her refusal to countenance the sexual danger to which they may still be exposed by the father and his younger brother represents an impingement upon her capacity to protect the children.

  6. The children enjoy “warm and loving” relationships with the maternal great grandmother and paternal grandmother, but the maternal great grandmother has been their effective primary carer for the last couple of years. Presumably that is why the paternal grandmother previously accepted the children should remain living with the maternal great grandmother, if she could successfully keep them safe from the mother, which she has successfully done in recent times. The paternal grandmother admitted in cross-examination the children would miss the maternal great grandmother if they were removed from her residential care.

  1. There was no basis upon which to differentiate the capacity of the maternal great grandmother and paternal grandmother to satisfactorily meet the children’s physical and intellectual needs, though that would likely be a more onerous burden for the paternal grandmother, given she still has five of her own six children living with her. Only the two subject children reside with the maternal great grandmother and her husband. The paternal grandmother’s evidence that the maternal great grandmother “cannot manage” the children’s care herself was either an exaggerated flourish or deliberately false.[49] The paternal grandmother’s submission that she can better meet the children’s needs is rejected because it lacked any cogent evidentiary basis.

    [49] Paternal grandmother’s affidavit, para 119

Conclusions and orders

  1. The presumption of equal shared parental responsibility for the eldest child is rebutted (s 61DA(4)). The mother and father could not even muster the enthusiasm to participate in the trial. They each respectively abdicated their parental responsibilities in favour of the maternal great grandmother and paternal grandmother.

  2. The presumption of equal shared parental responsibility for the youngest child is rebutted (s 61DA(4)), even if not already rendered inapplicable by reason of past family violence between the mother and Mr B (s 61DA(2)). Similarly, the mother disengaged from the litigation and Mr B did not engage with it at all, save for him filing a Parenting Questionnaire about a year ago.

  3. The paternal grandmother proposed that she be vested with sole parental responsibility for the children if they live with her.[50] The intervener and Independent Children’s Lawyer both proposed that the children live with the maternal great grandmother and that she have sole parental responsibility for them.[51] The maternal great grandmother did not expressly apply to have sole parental responsibility for the children, but it was implicitly part of her overall proposal. Nobody contended the maternal great grandmother and paternal grandmother should share parental responsibility for the children. Sensibly, it was accepted that the person with whom the children will live should be vested with exclusive parental responsibility for them, as the Family Consultant recommended.[52]

    [50] Exhibit 2R4, Order 1

    [51] Exhibit INT4, Order 1; Exhibit ICL6, Order 1

    [52] Family Report, para 177

  4. The children should live with the maternal great grandmother. That result is dictated by the following considerations: she is the biological relative of both children, but the paternal grandmother is not; they have lived with her for the past few years; she has been primarily responsible for their day-to-day care; it would be emotionally disruptive for the children to be removed from her primary care; she is capable of meeting their physical, emotional and intellectual needs; the paternal grandmother is no better placed to do so; the paternal grandmother admitted to the Family Consultant the children should remain living with her if she can adequately protect them from the mother; the evidence proved she probably will protect the children from the mother; and the paternal grandmother’s protective capacity is inferior, as demonstrated by her unwillingness or inability to protect the children against the danger posed by the paternal grandfather for many years and her unwillingness to countenance any danger at all posed by the father and her younger son, both of whom still live with her. The paternal grandmother might be able to contain the risk for the children in her household over relatively short periods, but not on an indefinite basis, as would be required if the children live with her.

  5. The orders prescribe the time the children should spend with the paternal grandmother. As between the maternal great grandmother and paternal grandmother, although they contested the children’s residence, it was uncontroversial the children should spend time with the non-residential carer on alternate weekends. There was some disagreement about the duration of the weekend visits and whether some extra time in the school holidays should be included, but those differences were not addressed in either the evidence or submissions so they could not have been too important.

  6. The children’s alternate weekend visits with the paternal grandmother will commence on Saturday morning and conclude on Sunday afternoon. That is long enough for two reasons: it is long enough for the children to maintain their relationships with the paternal family members and it is not too long to expect the paternal grandmother to diligently supervise the children around both the father and her younger son. She knows the strict supervision requirements for offenders like the father who are registered on the Child Protection Register.[53]

    [53] Paternal grandmother’s affidavit, paras 95-96; Family Report, para 109

  7. Although the maternal great grandmother was willing to allow the children to spend half of all school holiday periods with the paternal grandmother, no such order is made. The paternal grandmother could not feasibly supervise the children with the father and her youngest son in and around her household for continuous periods of a week or more when she needs to bathe, sleep, and undertake an array of other tasks that divert her attention. She made admissions to that effect in cross-examination.

  8. The suggestion of the Family Consultant[54] and the proposal of the intervener[55] to the effect that arrangements for the children should be left to ad hoc agreement between the maternal great grandmother and paternal grandmother without the need for any orders is rejected. Historically, the maternal great grandmother and paternal grandmother have been able to successfully negotiate arrangements for the children, but there is no guarantee they always will. For them, the litigation will have been pointless unless prescriptive orders settle arrangements for the children for the times when they cannot reach private agreement.

    [54] Family Report, para 40

    [55] Exhibit INT4, Order 5

  9. The maternal great grandmother and the paternal grandmother both live in different townships within Region H of NSW. The road journey between their homes was estimated at 90 minutes. F Town is the township equidistant between their homes. The children can be exchanged at a public venue in that town, as was agreed.

  10. No orders are made to regulate any communication between the children and paternal grandmother. Aside from the paternal grandmother, no party proposed any such order and, in any event, the communication order proposed by the paternal grandmother (in reverse) was so vague as to be unenforceable.[56] The children will see her frequently enough that additional communication is unnecessary.

    [56] Exhibit 2R4, Order 4

  11. Although the paternal grandmother applied to restrain any contact at all between the children and the mother, if that proposal was unsuccessful, it was a common position that any time spent by the children with both the mother and the father should be supervised.

  12. There is no need to regulate the times at which the children will spend supervised time with the mother. The maternal great grandmother can be relied upon to decide. However, the orders will restrain her from allowing the mother to live in her home, to attend her home, or to be in the children’s company without the supervision of either her or the children’s maternal great aunt. The orders also restrain her from allowing the children to have any contact with the mother’s current partner, Mr C. Those conditions were uncontroversial.

  13. There is no need to regulate the times at which the children will spend supervised time with the father. He lives with the paternal grandmother and the children will see him when they spend time with her. The orders will only restrain the paternal grandmother from allowing the children to be in the father’s company without her supervision. The parties accepted that, on the evidence, orders in that form would not invite the father’s breach of his obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) or the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).

  14. The orders restrain the paternal grandmother from allowing the children to be in the company of her younger son (the paternal uncle), who allegedly sexually molested the eldest child, unless supervised by her.

  15. The orders restrain the paternal grandmother from allowing the children to have any contact at all with the paternal grandfather. She was willing to submit to such an order.[57]

    [57] Paternal grandmother’s affidavit, para 80

  16. The orders restrain the mother, father and paternal grandmother from approaching the children’s pre-schools and schools and restrain the mother and father from approaching the maternal great grandmother’s home. The Independent Children’s Lawyer sought an order in similar terms, but without including the paternal grandmother’s exclusion from the children’s pre-school and schools.[58] The paternal grandmother has no need to attend the children’s pre-school or school, but may need to attend the maternal great grandmother’s home.

    [58] Exhibit ICL6, Order 11

  17. There is no need to regulate the time at which the children spend time with Mr B or his parents. The maternal grandmother can be relied upon to decide if and when that occurs, given the evidence she heard at trial. She has ensured, to the best of her ability, that the youngest child’s visits with Mr B are supervised by his parents.[59] Nobody challenged the maternal great grandmother about the probity of that discretionary decision. However, contrary to the maternal great grandmother’s proposal, the children should not be separated for alternate weekend visits to their individual paternal families. The Family Consultant recommended against it and she was not challenged about the correctness of her advice.[60]

    [59] Maternal great grandmother’s affidavit, para 7

    [60] Family Report, para 175

  18. The remaining orders are self-explanatory, reasonable, and promote the children’s best interests.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 6 July 2018.

Associate: 

Date:  6 July 2018


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Mickelberg v The Queen [1989] HCA 35
Taylor v Taylor [1979] HCA 38
Allesch v Maunz [2000] HCA 40