Pinfold and Crammond

[2019] FamCA 618

FAMILY COURT OF AUSTRALIA

PINFOLD & CRAMMOND [2019] FamCA 618

FAMILY LAW – CHILDREN – Parental responsibility – With whom the children live – Where the mother and father each seek sole parental responsibility for the children and for the children to live with them – Where the children currently live with the father in the home of the paternal grandparents – Where there are serious allegations of sexual abuse made against the paternal grandfather by the mother – Where the children have close and loving relationships with each of the parents – Where the father and the paternal family do not facilitate the children’s relationships with the mother – Where the children’s relationships with the mother are likely to be lost if they remain in the sole care of the father and paternal family – Orders made for the mother to have sole parental responsibility and for the children to live with her – Children to spend substantial and significant time with the father as specified.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65AA, 65DAA

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8.
Goode and Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Pinfold

RESPONDENT: Mr Crammond

INDEPENDENT CHILDREN’S LAWYER: O'Donnell & Associates Family Lawyers

FILE NUMBER: NCC 453 of 2016

DATE DELIVERED: 3 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 9 - 12 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilkinson

SOLICITOR FOR THE APPLICANT: Winder Lawyers

COUNSEL FOR THE RESPONDENT: Ms Otrebski

SOLICITOR FOR THE RESPONDENT: Koulouris & Associates Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Moore

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O'Donnell & Associates Family Lawyers

Orders

1. The following parenting orders are made in relation to the children, X born …2010 and Y born … 2013.

2. All previous parenting orders are discharged.

Parental Responsibility

1. The mother shall have sole parental responsibility for the children.

Live With

1. The children shall live with the mother.

2. The father shall deliver the children to the mother at 2.00 pm on 4 September 2019 to the office of Child Dispute Services, Newcastle Registry, Family Court of Australia, Bolton Street, Newcastle.

Spend Time

1. The father shall spend no time with, or communicate with, the children until 25 September 2019 on which occasion he shall spend time with the children from after school on 25 September 2019 to before school on 27 September 2019.

2. Commencing on 18 October 2019 the children shall spend time with the father as follows:

   (a)each alternate weekend from Friday after school to Monday morning before school during the school term;

   (b)for the first week of the school holidays at the end of Terms 1, 2 and 3 commencing in 2020;

   (c)for two consecutive weeks during the long school holidays at the end of Term 4, with these weeks being the first two weeks (commencing Saturday) in January 2020 and each alternate year thereafter and the last two weeks (commencing Saturday) of January 2021 and each alternate year thereafter at the same times as for end of term school holidays;

   (d)each Christmas from 5.00 pm Christmas Eve to 5.00 pm Christmas Day in odd number years commencing 2019 and from 5.00 pm Christmas Day to 5.00 pm Boxing Day in even number years commencing 2020;

   (e)on Easter Sunday, when the children are not already spending time with the father, from 9.30 am to 5.00 pm; and

   (f)at other times as agreed between the parties in writing (including SMS).

Changeover

1. Changeover shall take place to and from school at the beginning and end of the school day and otherwise during non-school days at a public place such as the McDonald’s Family Restaurant closest to the father’s home, and for the purposes of changeover:

   (a)the mother shall deliver the children to the father at the beginning of his time with the children;

   (b)the father shall deliver the children to the mother at the end of his time with the children; and

   (c)neither party shall be accompanied by any other person to changeover.

2. For the purposes of the children spending end of term school holiday time with their father pursuant to these orders, the mother shall deliver the children to the father at 9.30 am on the first Saturday immediately after the last day of the school term, and the father shall deliver the children to the mother at the end of his time with them at 5.00 pm on the second Saturday after the last day of the school term.

3. On the occasions that the father is responsible for delivering the children to school at the end of his time with them, he shall ensure that the children arrive at school at least fifteen minutes prior to the start of the school day.

Courtesy

1. Each parent keep the other informed of their current contact address, mobile phone number and any available contact email addresses and advise the other parent of any change thereto seven (7) days prior to any such change.

School

1. The father shall be permitted to attend the children’s school for functions that parents would ordinarily attend, including but not limited to such events as Easter Hat Parades, Christmas functions and prize giving events, and shall be permitted to contact the children’s school to obtain the dates and times of such events.

Health

1. The mother shall advise and keep the father advised in writing of the dates and times that the children are to attend upon specialists, including but not limited to any speech therapists, eye specialists or psychologists, and the father shall be at liberty to contact these therapists and specialists and obtain copies of any reports about the children at his own cost.

2. In the event of a medical emergency involving the children, the parent in whose care the children are shall contact the other parent forthwith by SMS or telephone to inform them of the nature of the emergency, and the name, address and telephone number of the hospital to which they have taken the children.

Restraints

1. Each of the parents be hereby restrained by injunction from:

   (a)abusing or insulting or otherwise denigrating the other parent;

   (b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with, or in the presence or hearing of the children, and from permitting any other person, including members of their families to do so; and

   (c)shall remove the children from any place where other persons attempt to discuss these proceedings in the presence or hearing of the children.

2. Each of the parents be hereby restrained by injunction from placing photographs of the children on Facebook, Snapchat or any other form of social media and shall take all reasonable and necessary steps to ensure that no other member of their immediate and extended families place photographs of the children on social media.

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 Pinfold & Crammond 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 SYDNEY

FILE NUMBER: NCC 453 of 2016

Ms Pinfold

Applicant

And

Mr Crammond

Respondent

REASONS FOR JUDGMENT

Introduction

1. X and Y are eight and six years of age respectively.  Their parents are Mr Crammond (“the father”) and Ms Pinfold (“the mother”).

2. The parents separated in mid-2015.  Since that time the children have been living at the home of their paternal grandparents.  The mother left that home assisted by the police on 23 February 2016 but she was not permitted by the father and his parents to take the children with her.  The mother has encountered great difficulty in obtaining opportunity to continue her relationship with the children. She has spent supervised time with the boys at the Children’s Contact Service (“CCS”).  But the arrangements in relation to this have broken down, the father not having complied with his obligations under current parenting orders.  The children have not spent time with their mother since February 2019.

3. The parents have been unable to resolve their dispute about final parenting arrangements and have asked the Court to determine such arrangements.

Applications

1. The mother seeks orders to the following effect:

   ·she have sole parental responsibility for the children;

   ·for two consecutive weekends the children spend time with her from 9.00 am Saturday until 5.00 pm Sunday;

   ·for a further two weeks the children spend time with her from 5.00 pm Friday until 5.00 pm Sunday in the first week and from 3.00 pm Wednesday until 9.00 am Thursday in the second week;

   ·thereafter commencing on the following Saturday at 10.00 am the children live with the mother and spend time with the father as follows:

   oduring school term each alternate weekend from the completion of school Friday until the commencement of school Monday;

   oeach alternate Wednesday from the completion of school until the commencement of school the next day;

   ofor half of all school holidays; and

   ·the children communicate with the father by telephone, Skype or other electronic means at reasonable times and with reasonable frequency.

2. The father seeks the following orders:

   ·he have sole parental responsibility for the children;

   ·the children live with him; and

   ·the mother spend time with the children as determined by the Court.

3. Counsel for the father informed the Court during final submissions that the father would agree to the children spending supervised time with the mother.  It was submitted that this could be on alternate weekends.

4. The Independent Children’s Lawyer (“ICL”) seeks orders on the basis of two options but counsel for the ICL indicated that the preferred option is as follows:

   ·all previous parenting orders be discharged;

   ·the children live with the mother;

   ·the mother have sole parental responsibility for the children;

   ·the father deliver the children to the mother at 10.30 am at the office of Child Dispute Services, Newcastle Registry of this Court on the weekday immediately following the making of the orders;

   ·the father shall spend no time with the children or communicate with them for four weeks following the commencement of the orders;

   ·commencing on the Sunday immediately following the four week period referred to the children spend time with the father as follows:

   oeach alternate weekend from Friday after school to Monday before school during school term;

   ofor school holiday periods as specified;

   ·various orders in relation to changeover; maintaining contact details, school, medical and health; and

   ·certain restraints on each parent as specified

5. The form of orders sought by each of the parents and by the ICL are annexed to these Reasons as Annexures “A”, “B” and “C” respectively.

Background

1. The father was born in 1991 and is now aged 27 years. 

2. The mother was born in 1994 and is now aged 25 years. 

3. The parties had attended the same high school. They subsequently met in December 2009 and commenced a relationship shortly thereafter.

4. They commenced cohabitation in January 2010 upon moving into a granny flat at the back of the home of the mother’s mother, Ms D, and her husband Mr D, at Suburb U.  After a short period they moved to live with the mother’s grandparents for a few months at Town CC.

5. In approximately May or June 2010 the parties began to live with the paternal grandparents at Town E.  At this time the father was working as a trade apprentice.

6. The parties became engaged in July 2010.

7. The parties’ elder child, X, was born in 2010.  At this time the father was working as a casual delivery driver.

8. A couple of months after X was born the parties changed residence and commenced living with a friend of the father, Mr F and his girlfriend, in Town DD.  The father said that while living there he was told by Mr F on multiple occasions that he saw the mother smack X.

9. In approximately mid-2011 the parties moved to a house at FF Street, Town E, close to the paternal grandparents’ home.

10. In approximately February 2012 the mother and X stayed with the paternal grandparents because the mother needed assistance with the child.  After a few months the mother and X returned home to the father.

11. In April 2012 the Department of Family and Community Services (“FACS”) placed the mother’s younger brother, V, with the mother and the paternal grandmother.  There were issues with V while he was living at the paternal grandparents’ house.  After an incident regarding medication gone missing, the mother decided that V be placed by FACS into a foster care placement at Town EE.

12. The parties’ youngest child, Y, was born in 2013.

13. The parties separated in mid-2015.  Their lease terminated in July 2015 so they moved to live with the paternal grandparents, but in a state of separation.

14. On 24 June 2015 the father commenced a relationship with Ms G.

15. The paternal grandfather alleged that on 3 September 2015 X told him that “Mum grabbed me by the throat and then she pushed me”.  He said that on 13 September 2015 X told him that “Mum bit me”. I shall refer to these allegations again below.

16. The mother said that on 23 February 2016 she and Y were at the paternal grandparents’ business premises.  She said that the paternal grandfather sexually assaulted her in the premises.  That afternoon the mother gave a note to her cousin AA to hand to her aunt Ms BB asking her to bring the police that evening to assist her to leave the paternal grandparents’ home.  The police attended that evening. The mother left, assisted by the police.  But the father and his parents did not permit her to take the children and they remained living with the father and the paternal grandparents.  The police took the mother to her great-grandmother’s residence in Town CC were she stayed for a few weeks.  She then relocated to the home of her maternal grandmother in Suburb U.  I shall refer to this again below.

17. On 24 February 2016 the mother filed an Initiating Application for interim and final orders in the Federal Circuit Court (“FCC”) at Newcastle, including for an order for the police to recover the children and to deliver them to her.

18. On 29 February 2016 the matter was listed for mention in the FCC at Newcastle and Judge Myers made directions, including that the matter be transferred to the Sydney Registry of the FCC and the paternal grandfather, Mr B Crammond, be joined to the proceedings as the second respondent.

19. The paternal grandfather said that in March 2016 the mother was charged with animal cruelty and the matter was listed in the Local Court at Town NN.

20. The mother commenced a relationship with Mr H on 24 March 2016.

21. On 1 April 2016 the parties and the children attended a Child Inclusive Conference in the FCC at Newcastle.

22. On 1 June 2016 interim orders were made by consent in the FCC at Sydney to the following effect:

    ·the father have sole parental responsibility for the children;

    ·the children live with the father;

    ·the mother be restrained from publishing any photos of the children on Facebook or any other social media site;

    ·each party to contact CCS to arrange for an appointment for an Intake Assessment for supervised contact and changeover and if the parties are accepted, the mother is to have contact with the children each second weekend at times nominated by CCS;

    ·the children be independently represented by an ICL; and

    ·the paternal grandfather be discharged from the proceedings.

23. The ICL appointment was confirmed on 11 June 2016.

24. The children commenced attending supervised playgroup at CCS from 1 July 2016.

25. In July 2016 the mother commenced living with Mr H at his parents’ home.

26. On 26 July 2016 the ICL interviewed the children in Sydney.

27. In August 2016 Ms G moved to live with the father at the paternal grandparents’ home.

28. Later in 2016 Z, the child of Ms G and the father, was born.

29. On 4 November 2016 X was recommended by a school counsellor to undertake intensive speech therapy after test results showed a low average capacity and pronounced expressive language difficulties.

30. On 14 January 2017 the mother commenced spending supervised time with the children at CCS.  There had been a long waiting list and other difficulties.

31. On 3 February 2017 the mother commenced employment at J Centre.

32. In April 2017 the mother and Mr H relocated to rented accommodation in Suburb K.

33. On 13 June 2017 the mother attended and completed the “Kids in Focus” parenting course at CCS.  

34. On 14 June 2017 the parents and children were interviewed by Family Consultant Ms L for the purpose of preparing a Family Report.

35. On 4 August 2017 the Family Report was released.

36. On 29 August 2017 Dr M, Paediatric Neurologist, wrote a letter to the children’s general practitioner, Dr N, about X’s attention-deficit hyperactivity disorder (“ADHD”) and development delay, but suggested that the findings did not point to a pattern of cerebral palsy or shaken injury.

37. On 1 September 2017 Judge Monahan adjourned the matter until 1 February 2018 for directions after the parties attended mediation.

38. On 18 November 2017 the children’s scheduled visit to CCS for supervised time with the mother was cancelled by the father due to the paternal grandfather suffering from liver failure.

39. The mother said that she completed the “Parenting after Separation” course on 7 December 2017.

40. On 12 December 2017 the father caused his solicitor to write a complaint to CCS about an incident where a balloon popped on Y’s arm and the worker only placed a cold ‘Freddo Frog’ chocolate on his arm rather than an icepack.

41. The CCS notes of 24 January 2018 report that X punched and kicked the mother during supervised contact and that Y told the mother that they had brought  whistles to annoy her.

42. The parties attended a telephone mediation on 8 February 2018 arranged by Legal Aid NSW. No agreement was reached.

43. On 23 February 2018 the proceedings were transferred to this Court. 

44. The father said that on 24 March 2018, following a contact visit with the mother, X said to the father and Ms G that the mother pushed Y over and made him hit his forehead on the wooden floor and a red mark was left on his head.

45. The mother and Mr H moved to their own rented home in Suburb U in April 2018.

46. The children’s visit to CCS for supervised time with the mother on 7 April 2018 was cancelled as the children had gastroenteritis.

47. At the end of the supervised visit on 21 April 2018 Y left the CCS premises and told the father and his partner that the mother “pushed (his) head into the floor again” during the contact visit.  The father alleged that X said “I saw mother do it… They didn’t believe us, they said we were lying”.

48. On 4 June 2018 the mother advised the staff at CCS that X had kicked her during supervised contact on 2 June 2018.

49. The mother said that on 14 June 2018 she had completed the Circle of Security Course.

50. The matter was listed for the first day of the Less Adversarial Trial (“LAT”) on 21 June 2018 and the Court noted that the mother’s solicitor was endeavouring to arrange an assessment of the mother by Dr P.  The proceedings were adjourned to 27 August 2018.

51. The children did not attend supervised time with the mother at CCS on 28 July 2018 because the father cancelled due to his daughter Z’s birthday coinciding with the children’s appointment at CCS.

1. On 27 August 2018 the matter was listed for the second day of the LAT.  The Court noted that the mother’s solicitor was endeavouring to arrange an assessment of the mother by Ms O, psychologist, with the interview having been scheduled for 9 October 2018.  The Court also noted that the boys were living with the father and the paternal grandparents. The proceedings were adjourned for mention on 29 October 2018.

2. The children commenced therapy with Ms Q, psychologist, on 31 August 2018. 

3. On 4 September 2018 the father was advised by CCS staff that the children were to move into the supervised playgroup program at CCS.

4. On 8 September 2018 the mother did not attend supervised contact at CCS due to work training.

5. The mother said that on 27 September 2018 she completed the Circle of Magic “1, 2, 3” parenting course.

6. At approximately this time the mother and Mr H moved back to his parents’ home after their house was sold.

7. On 9 October 2018 the mother attended on Ms O for the preparation of a report about her mental health.  The mother also contacted CCS to advise that she would not be able to attend contact with the children in late October 2018.  In fact, the mother and Mr H were married that day.  The father asked CCS to notify his solicitor of the mother’s non-attendance. 

8. On 29 October 2018 orders and directions were made to the following effect:

   ·each party file and serve an affidavit in chief by them personally and one affidavit of each of their witnesses no later than 30 November 2018;

   ·these proceedings be adjourned for a readiness check on 3 December 2018 at 10.00 am;

   ·the applicant’s lawyer have leave to appear by telephone on 3 December 2018; and

   ·the Court noted that the mother had now attended a psychologist.

9. On 1 November 2018 Town E Public School sent a letter to the father advising that Y had punched and scratched other students. The letter warned of the potential consequences for Y, including suspension from school. 

10. The children did not attend supervised time with the mother at CCS on 17 November 2018 as the father cancelled because he was delayed in traffic.

11. The mother was made redundant from her employment on 23 November 2018.

12. On 30 November 2018 the parties had filed all necessary affidavits for final hearing.

13. Supervised time with the mother at CCS on 1 December 2018 was cancelled by the father on 30 November 2018.

14. On 3 December 2018 the final parenting proceedings were listed for hearing over four days commencing on 2 April 2019 and the Court noted that all affidavits had been filed.

15. The children’s therapist made a report to FACS on 14 December 2018.

16. The children’s supervised time with the mother at CCS on 15 December 2018 was cancelled by the father.

17. The children’s supervised time with the mother at CCS on 4 January 2019 was cancelled by the father allegedly due to work commitments.

18. The children’s supervised time with the mother at CCS on 26 January 2019 was cancelled by the father as Y had broken his arm.

19. On 9 February 2019 the mother spent supervised time with the children at CCS.

20. The next appointment for the children to spend supervised time with their mother at CCS was for 23 February 2019. It did not take place apparently because the father had to work.

21. On 26 February 2019 the parties were advised by the Court that the final hearing dates were vacated and that the matter was listed for final hearing on 9, 10, 11 and 12 April 2019 due to the unavailability of the Family Consultant for cross-examination.

22. The CCS appointment for 9 March 2019 did not take place, the Centre staff informing the mother that the father had informed them that he had previous arrangements. Nor did the next CCS scheduled appointment take place. When the mother arrived at the Centre they telephoned the father and he informed them that something had come up and he thought the appointment was for the following weekend.

23. The next CCS scheduled appointment was for 6 April 2019 but it did not take place. When the mother arrived, the Centre staff attempted to telephone the father but could not make contact with him.

24. School attendance records for the period of 2 February 2016 to 6 March 2019 showed a serious level of partial and whole absences from school for X.

25. School attendance records for the periods of 1 February 2018 to 6 March 2019 showed 71 partial absences and 17 whole absences from school for Y.

Credit

The Mother

1. The mother was forthcoming and responsive.  She made concessions readily.  In fact, she was almost too ready to make concessions and at one point I intervened and suggested to her that she needed to think carefully about what she was saying because she appeared to be conceding something against the evidence and against her interests. 

2. The mother has made very serious allegations that she has been sexually abused by the paternal grandfather, Mr B Crammond, on multiple occasions.  I shall refer again below to the sexual abuse allegations.

3. There are a number of inconsistencies in her evidence.  She was somewhat loose in the assertions made in her affidavit.  For example, at paragraph 18 of her affidavit the mother said “From approximately June 2015, I was not allowed to leave the house with both my children, instead I was only allowed to have one at a time”.  It emerged during cross-examination that in fact this was not the case because the mother gave evidence of an occasion after this time when in fact she would leave the grandparents’ home with Y and collect X from school at which time she would be away from home with both of the children.  The mother said that the paternal grandparents and the father were controlling to the point where they cut her off from the whole world and that she was unable to contact her friends or family.  During cross-examination this was demonstrated not to be correct.  The mother also denied shaking X when he was a baby and she denied any serious smacking of the children.  But she conceded that she had smacked the boys on their nappies, legs and arms. 

4. I suspect that some of these inconsistencies occurred as a result of lack of care in preparing the affidavit. In any event, notwithstanding these matters, generally I regard the mother as a good and truthful witness.

The Father

1. The father appeared to have some difficulty with the process of cross-examination.  He was not particularly responsive on many occasions.  Rather than providing a succinct answer he added information which presumably he thought would favour his own case.  He was very reluctant to make any concessions.  He appeared to be somewhat defensive and appeared to have a well-developed sense of the correctness of his own views and opinions, particularly in relation to the mother.  He seemed to have a poor memory, time and again saying “I cannot remember”.

2. Overall I had a sense of a witness who did not appear to be endeavouring to be co-operative in the process.  I have reservations about the accuracy of his evidence.

Mr B Crammond

1. Mr Crammond is the paternal grandfather.  Initially he was very quick with his responses but appeared somewhat defensive and confrontational.  Also initially he added to numerous answers information which was really extraneous to the question and presumably was offered for the purpose of endeavouring to further the father’s case.  He also appeared to be somewhat resentful.

2. But over the course of his cross-examination the paternal grandfather appeared to become more settled and more co-operative with the process of cross-examination.

3. When the police visited the paternal grandfather’s home on 23 February 2016 it is common ground that the police indicated that the mother’s aunt had said that the mother was afraid and wanted to leave.  The father said that he replied “She can leave whenever she wants”.  The father denied that in fact he said “If you go, you won’t be coming back and you’re not taking the kids”.  Yet the police notes of their attendance on this occasion record that is what the paternal grandfather said.  I prefer the police record over the paternal grandfather’s assertion about this matter.

4. There are other areas of the paternal grandfather’s evidence about which I am concerned as will be seen below.

5. I have considerable reservations about the accuracy of the evidence of the paternal grandfather.

Ms G

1. Ms G is the father’s partner and mother of the children’s step-sibling, W and their half-sibling, Z.  Ms G was reasonably responsive.  She did not always demonstrate recollection of matters of detail.  For example, she said that she was really bad with dates.  As is the case with other members of the father’s extended household she has a very poor view of the mother.

2. I regard Ms G as a truthful witness.

Mr H

1. Mr H is the mother’s husband. 

2. Mr H was forthcoming, responsive and co-operative.  I regard him as being a witness of the truth.

Ms L

1. Ms L is the Family Consultant who prepared a Family Report in these proceedings dated 2 August 2017.

2. Ms L gave her evidence in a clear, professional manner.  Where I refer to her report and her evidence it can be taken that I accept such evidence.

Allegations of Sexual Abuse

1. The mother has alleged that she has been sexually abused by the paternal grandfather.

2. The mother said that this sexual abuse commenced in approximately 2012 when she and the father were living at FF Street, Town E.  During cross-examination the mother said the abuse commenced when she was “behind the wheel” during a driving lesson by the paternal grandfather and he took her left breast out of her bra. She immediately pulled the car off the road and put her breast back in her bra. She told him that she was uncomfortable and he said he was uncomfortable as well. He told her to drive back home.

3. At paragraphs 24 to 44 of the mother’s affidavit she deposed as follows:

   24. While living with the paternal grandparents I was to teach me to drive. Mr B Crammond would take me for lessons.

   25. In the beginning he would play with my breasts while I was driving.

   26.When I told him that it made me feel uncomfortable. He reacted by making me that I was in the wrong and he had every right to do it.

   27.I was also pregnant with Y at the time and was so uncomfortable with him touching me inappropriately that I came up with excuses not to go on the lessons.

   28.However this was not successful and I recall that Mr B Crammond threatened to kill me on numerous occasions if I didn’t do what he wanted me to do or I show any sort of defiant attitude towards him and what he wanted or to Ms Pinfold or Mr Crammond.

   29.Mr B Crammond would always make excuses for me to drive him places such as Bunnings and masters in the evening would make me take bush tracks and have me pull over and stop.

   30.He would swap seats with me, and for example make me undress and touch me and penetrate me.

   31.Then when he was done he would force me to give him oral sex.

   32.If I said no to him touching me or me doing things to him such as oral sex to him or having sex he would get angry and say words to the effect: “If you didn’t do it I had a shovel in the back of the car and I will d be able to dig your grave and do it anyway”.

   33.He also said to me words to the effect: “If you tell anyone I touch you, you are dead”.

   34.When we got home I would go straight for a shower. While in the shower Mr B Crammond would always walk in and watch me wash myself while smiling at me.

   35.The paternal grandfather would also come into my room late at night when he thought everyone else was asleep and touch me.

   36.I pretended to be asleep and wrap myself up tightly in my sheets as my security to try to keep him at bay and make me feel safe because I knew he couldn’t touch me if I wrapped myself up.

   37.I recall although he would try to get to me touch me where he wanted too and keep trying for at least half hour I would kept the blanket tightly around me and try to prevent him for assaulting me.

   38.The next morning he would yell at me for wrapping myself up so tight that he couldn’t get to me.

   39.When I found the courage to started speak up and telling the paternal grandmother and the father what was happening they reacted by saying I needed more help for my depression, I was making stuff up and Mr B Crammond would never do anything like that.

   40.On Tuesday 23rd February 2016, Y and I were at the paternal grandparent’s business. Y and I alone with Mr B Crammond.

   41.At one point Mr B Crammond grabbed me roughly and said to me words to the effect: “I am your one and only forever”

   42.I was terrified and didn’t say anything at all, then he put his hand up my dress and pulled my underwear down and began touching my vagina while standing in the middle of the premises.

   43.I did not know what to do. We were in the premises and Y was with me. I didn’t want to make a seen with Y present and I was also scared because of what Mr B Crammond had threated to do to me previously.

   44.At 3.00pm I took Y with me to pick X up from school and ran into my cousin AA. I handed her a note to give to my Aunty Ms BB. The note said: “please help me get out of here tonight bring police love tam”

   (As per the original)

4. The mother said that in September 2015 the paternal grandfather took her for a drive and said that he was going to kill her.

5. During her cross-examination the mother said that the paternal grandfather penetrated her with his hand, that she performed oral sex on him and that he touched her vagina on more than one occasion.

6. During cross-examination the mother said that the paternal grandfather “put his fingers in (her) vagina… more than ten times”. She said that she remembered all of them and said that “it was always at the bush track”.

7. Upon being asked to give her best memory of one such occasion the mother said words to the following effect:

   She and the paternal grandfather were in his vehicle, she thought sometime in 2014 after her birthday (July). She was driving and the paternal grandfather told her to pull up just behind some trees outside Town E High School. It was dark. The paternal grandfather asked her to swap seats – he got out from the passenger seat and got into the driver’s seat. She climbed over into the passenger seat. He told her in a threatening, aggressive tone to take off her pants, she was wearing shorts, and instructed her to take off her underwear. She was scared and feared for her life so she complied. He proceeded to touch her and penetrated her vagina with his fingers. He kept telling her to look at him which she did. He looked happy, like he was enjoying what he was doing.

   Then he decided that was enough. She asked him could she get dressed and he said “not yet”. He took his pants down and ordered her to do oral sex on him. She was scared and did not know what to do so she complied. That was not the only time of oral sex. She put her mouth on his penis which was hard. He ejaculated and ordered her to swallow it. Then he pulled his pants up, she pulled her pants up and they went back.

8. At this point I observed the mother to be crying.

9. The mother said that there were more than ten occasions when this occurred. She said that the paternal grandfather would say that his eyes were playing up, or his back was playing up, and he couldn’t drive, and he wanted her to drive him to Bunnings.

10. During cross-examination the mother gave a more detailed account of the alleged sexual abuse at the grandparents’ business premises. This was as follows:

    On 23 February 2016 she went to the premises after lunch near the time when she had to collect X from school.  Y was playing with his cars next to the door at the rear of the premises.  There was a wall beside that door.  When the mother was in the paternal grandfather’s workshop part of the premises he said to her “I am your one and only forever”.  He pulled her underwear down to her knees and touched the outside of her vagina with his fingers.  She told him to stop but did not say anything else because she was too scared. The mother pulled her underwear up and went to collect X from school. This was the occasion when she gave the note referred to above to her cousin AA.

11. The mother also said that approximately six months before the above incident on 23 February 2016, she was in the grandfather’s ute and he took her to a road between Town HH and Town JJ and parked there.  She said that he put his hand around her throat and said that he had a shovel in his car and would bury her.  She said that she saw the shovel in the vehicle.

12. The father denied that the mother had informed him at some time between June 2015 and February 2016 that she had been sexually abused by the paternal grandfather.  He said that he did not find out about the allegations until either the second or third court hearing in Sydney or he might have read it in the Family Report. He thought it was “absolute crap”.

13. The mother said that apart from the father and paternal grandmother, the first person she informed about the alleged sexual abuse was the female police officer who assisted her to leave the grandparents’ home on 23 February 2016.  The mother said that when she was in the police car she said “I’ve got something I need to tell you”.  The mother said that the police officer looked at her and asked her what it was.  She said “I was abused by Mr B Crammond”.  The mother said that the police officer did not say anything and was more interested about her grandmother’s address because her cousin had lived there and the police knew him because he was in prison.  She said that she thought that the police officer probably had not heard her over the police radio which was making noise.  The mother said that there was no further conversation about sexual abuse on that occasion.

14. There was no record of this in the police notes.

15. The next person to whom the mother said she reported this allegation was Family Consultant Ms R, who interviewed the parents and X for the Child Inclusive Conference on 1 April 2016.  Ms R reported this as follows in her conference memorandum:

    At this interview the mother said that the paternal grandfather had touched her in a sexual way on a number of occasions, but she did not believe this created a risk for the children.  She said that he had previously been accused of inappropriately touching his stepdaughter but no-one believed her.  The mother said that she told the father about the paternal grandfather touching her but he didn’t believe her.  She said it was a repeated occurrence.

16. The mother said that she raised this matter with her counsellor at Catholic Care in May 2016.

17. The mother reported this matter to Family Consultant Ms L during her interview for the Family Report in June 2017. The section in the Family Report is paragraph 27 which is as follows:

    Ms Pinfold alleges that the paternal grandfather regularly sexually abused her while she lived in his home during the period from about June 2015 to February 2016.  She alleges that he also threatened to kill her and attempted to strangle her.  She said that she informed both Mr Crammond and the paternal step-grandmother of the abuse, but they did not believe her.  Ms Pinfold said that she informed the police of the abuse in February 2016 when she left the home, but “nothing has been done”.  Ms Pinfold alleges that the paternal grandfather controlled everything she did and everywhere she went.  He allegedly removed her laptop and mobile phone from her, and placed security cameras throughout the home with the intent, the paternal grandfather told her, of monitoring her treatment of the children. She alleges that she was being held against her will and that the paternal grandfather’s coercive control of everyone in the household and, his sexual abuse of her, led her to seek police assistance to leave the family home with the children in February 2016.  Ms Pinfold said that this was thwarted when the paternal grandfather allegedly refused to let go of X’s arm when she was attempting to leave with the children.  This assertion is supported by subpoena material. She said that she was then left with the option of leaving by herself and immediately applying for a Recovery Order, which she did.  She said that she believed, in the interim, the children could safely remain in the home with their father and paternal grandparents.

1. The mother also raised this matter with her counsellor Ms O, clinical psychologist, in October 2018 Ms O reported as follows:

   Between June 2015 and February 2016, Ms Pinfold alleges that Mr Crammond’s father, Mr B Crammond, was sexually abusing her.  She alleged that Mr B Crammond would force her to undress, force her to perform sexual acts on him and threatened to kill her if she did not comply.  She stated “I lost count” in reference to how frequently this occurred.  Ms Pinfold stated that the abuse occurred primarily while he was giving her driving lessons where he would allegedly tell her to “get my boobs out” while they were driving and then he would fondle her breasts.  Ms Pinfold claims that if she told him no, or to stop, he would become angry with her.  Ms Pinfold stated he would also come into her room at night.  She claimed that if she pretended to be asleep, he would “have a go at me [get angry] in the morning”.  According to Ms Pinfold, she disclosed what was happening to Mr Crammond, and his mother, Ms Crammond, however they both did not believe her.  She claims that they said she was “mentally unwell and needed to increase my medication”.  Ms Pinfold reported that she made a police report at Town NN Police Station, however, was apparently told there was not enough evidence to lay any charges against Mr B Crammond.  Following this, Ms Pinfold stated that Mr B Crammond and Mr Crammond began to make counter allegations towards her, claiming that she was violent towards the children and suicidal. Ms Pinfold denies both these claims.  On 23^rd February 2016, Ms Pinfold sought police assistance to leave the Crammond’s home, however, due to the claims that were being made about her being violent towards her sons, the police advised the boys remain with their paternal grandparents.  Apparently, V also remained in the Crammond’s care (although now he resides with his own maternal grandparents).

2. The paternal grandfather strongly denied that he had sexually abused the mother or any other person.  He said that there were text messages on the mother’s phone from a man she was communicating with while living at the paternal grandparents’ home about a plan they had to set him up with false allegations that he had sexually assaulted the mother.

3. He also denied ever threatening to kill the mother, strangle her or hurt her in any way.

4. Ms G said that she does not believe the mother’s allegations against the grandfather.  She informed the Family Consultant that she had always been “completely comfortable around him”.

5. During cross-examination, it was suggested to the mother that she had fabricated the allegations against the paternal grandfather as a strategy of presenting the grandparents as a risk to the boys with the objective of enhancing her own case. The mother strongly denied this.

6. The mother conceded during cross-examination that she had a friend called Mr GG with whom she had communicated by text messages including in mid-September 2015.  Mr GG sent the mother a lengthy text message on approximately 13 September 2015 which included the following:

   …Or just go to the police and tell them the people u live with are evil and that your ex’s dad is trying to force himself on u then the police will come and help you get ove there… If u totally want to fuck their lives forever and have your kids just say to the police tht your ex’s dad raped u. Then he’s totally fucked… The best way out is to tell the police what going on now the hole truth so you have a reference abc later on down the track if u go court to get your kids away from your evil ex’s parents…

   (As per the original)

7. The mother said that during her conversations with Mr GG she did not tell him about the alleged sexual abuse.

8. The mother said that she did not complain to the police about the paternal grandfather’s alleged behaviour until she made a statement at the Town KK Police Station on 30 November 2018, after she had sworn her affidavit in these proceedings.  She said that Town KK Police informed her that they had transferred the complaint to the Town DD Police.

9. I shall refer to this matter again below.

Alleged Violence by the Mother Against the Children

1. The father and his parents have made very serious allegations that the mother has perpetrated acts of violence on the children.

2. The first allegations relate to her having shaken X.  The father said as follows.  He saw the mother shaking X on two separate occasions while he and the mother were living at the FF Street home.  On the first occasion X was just over 12 months old (which would be approximately early 2012). The mother went into the bedroom with X, who started to cry.  She settled X but approximately ten minutes later, again he started to cry.  She picked him up and “was shaking him back and forth really aggressively” for maybe five seconds. All of a sudden she realised what she’d done and went to the bedroom crying. They were both in shock. They did not take X to a doctor.

3. The father said that the second occasion occurred a couple of weeks later and was as follows.  X was in the bouncinette and the mother couldn’t stop him crying.  She was sitting on the couch watching television and she picked up the bouncinette and started shaking X in it.  They did not take X to a doctor or to hospital.

4. The father also said that his friend, Mr F, with whom the parties had been living also alleged that he had seen the mother shaking X and also hitting him.  There was no affidavit filed by Mr F in these proceedings. I place no weight on this.

5. The father said that he recalled two occasions when X’s front teeth went through his lip and he had to be taken to Town E Hospital.  On both occasions he said that the mother said it occurred when X fell.  There is no record of either alleged incident in the records of Town E Hospital.  During cross-examination the father said that they might have taken him to Town NN Hospital. There were numerous records in the material produced of attendances by X at hospitals but none made reference to any such incident.  The father said that he told the doctor at the hospital that the injuries had been caused when X fell.  He said that he lied to the hospital staff out of a concern that the hospital staff might report the matter to the authorities.  The father said that he was concerned to try and resolve this issue within the family.

6. The father also alleged that the mother had admitted to him that she had stabbed Y in the eye.  The grandfather made a similar allegation.  The mother denied this.  This was said to have occurred in late 2014 or early 2015.  The father said that his parents had taken Y to Town NN Hospital.  Tendered into the evidence was a photo of Y with what appeared to be a cut at the corner of his eye. But the injury might not have been a cut. I am not satisfied that this photo takes the allegation much further.  There was no objective evidence of this. It was not reported to the police or any other authority.

7. The father also said that there was an incident after July 2015 where the mother grabbed X by the throat.  He and the paternal grandfather alleged that this had been recorded on a closed-circuit television (“CCTV”) camera which the grandfather had installed in the lounge room of the home.  The father was unable to produce any film which supported his assertions in this regard.  He said that the relevant film had been subsequently recorded over.  As was the case with the other alleged incidents, there was no report to FACS or the police.  The father and paternal grandfather also thought that there had been other incidents of violence recorded by the CCTV camera.  Following the mother having left the grandparents’ home on 23 February 2016 they undertook a search of the relevant film footage.  No film has been tendered in evidence in these proceedings.

8. The paternal grandfather alleged that on 3 September 2015 he heard X scream and X said “Mum grabbed my throat and then she pushed me”.  He said that X placed his hands around his throat.

9. The grandfather said that he took X to Town E Hospital late that day. He thought the mother went with them.  He said that he told both the triage nurse and the doctor who attended X what X had said.  The doctor examined X and said he would be fine.  The grandfather said that the doctor also said that (he or she) was only interested in the physical injuries.  The grandfather was unable to remember whether the doctor was male or female or whether they were younger or older.

10. The next day the grandfather took a photo which showed a bruise under X’s chin.  This photo came into the evidence.  The grandfather said that he took the photo to have evidence to show the mother what she had done.  Yet he said the mother had accompanied him to the hospital.

11. In my view, this allegation by the grandfather was unconvincing and strains credulity.  As counsel for the ICL submitted, the doctor would have been a mandatory reporter of injuries suspected of demonstrating child abuse. It seems highly unlikely that the doctor and staff would not have reported what the grandfather alleged the child said and the injury to the authorities.

12. I do not accept on the evidence that the mother abused the child as alleged.

13. I shall refer to those allegations again below.

The Mother’s Mental Health

1. The mother said that she has suffered from depression.

2. To assist the Court, the mother presented for a mental health assessment by Ms O, psychologist and clinical psychology registrar.  Ms O undertook her interview of the mother and psychometric testing of the mother on 9 October 2018.

3. I note that Ms O’ report includes the following:

   Ms Pinfold reported she was previously diagnosed with depression in 2015.  She explained that this arose in the context of a close family friend passing away unexpectedly and she reported that the death “triggered depression”.  Ms Pinfold described experiencing symptoms including chronic low mood, tearfulness, mood swings, poor concentration, disrupted sleep and reduced appetite.  She noted that Mr Crammond “was pushing me to get a diagnosis of depression”, however, it was around four months before she sought help from the GP.  At this point, she was prescribed Citalopram. Ms Pinfold reported that the medication assisted in reducing her symptoms. However, “once the abuse started”… Ms Pinfold noted her depressive symptoms worsened and the endronex was added to her medication regime.  As aforementioned, she ceased all antidepressants in early 2016.

   In the current assessment, Ms Pinfold did not endorse symptoms consistent with depression and as such, she no longer meets diagnostic criteria for the same.  Specifically, aside from the stress related to the current court proceedings, Ms Pinfold does not endorse any symptoms suggestive of a mood disorder.

   Ms Pinfold also described historical trauma symptoms and a diagnosis of Post-Traumatic Stress Disorder (PTSD), primarily related to witnessing the violent incident of her father at age four. She recalled having frequent recurring nightmares about the abuse and being highly conflict avoidant throughout her life as a reaction to the traumatic event.  As an adult, Ms Pinfold reported receiving counselling through LL Group from March 2015.  She said that she completed trauma-focused cognitive behaviour therapy (TF-CBT) with a therapist there, and since this time, the nightmares and intrusive memories have ceased.  Currently, Ms Pinfold does not report any significant alterations in arousal and reactivity, avoidance behaviours or negative alterations to her mood or cognition that would be required to meet diagnostic criteria for PTSD. As such, Ms Pinfold does not meet currently diagnostic criteria for PTSD.

   Ms Pinfold informed that due to staff leaving, she then engaged with a different counsellor at LL Group from August 2015. She attended sessions weekly or fortnightly and during this period she disclosed the alleged sexual abuse.  She completed treatment in August 2016 and reported she has not felt the need for additional psychological support since.  However, Ms Pinfold indicated she was open to engaging in future counselling if required.

   Ms Pinfold denied any history of self-harming or suicidal behaviours. She disclosed that she had fleeting suicidal thoughts during 2015 amid the alleged sexual abuse, however, she reported she never acted on these thoughts.  Furthermore, Ms Pinfold said that once she left the conflictual environment, she has not had any re-emergence of suicidal thoughts.

   In sum, Ms Pinfold does not self-report any current mental health concerns, which appears consistent with her presentation during this assessment.

   (Emphasis in original)

4. As is reported above, the mother said that she had some suicidal thoughts in 2015.  She said that she felt like driving her car into another car but would never do it.  The father said that the mother told him that she had suicidal thoughts about driving her car, also containing the children, into a tree.  But the father did not believe the mother ever acted on these thoughts. The mother denied the father’s assertion about having the children in the car.

5. I am unable to prefer one version over the other.

6. There was some evidence by counsel for the father about whether Ms O was appropriately qualified to provide an opinion concerning the mother’s mental health and whether the report is admissible into the evidence. In my view, Ms O satisfies this requirement and I accept her evidence.

The Applicable Law

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”). 

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.

3. The objects in this context are to ensure that the best interests of the children are met by:

   ·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   ·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   ·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   ·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   ·Parents should agree about the future parenting of their children; and

   ·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

6. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.

7. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

8. Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.

9. Subsection 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

10. If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

11. The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court cases of MRR v GR (2010) 240 CLR 461 and Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8.

Parental Responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.

3. In the present case the parties have a very poor relationship.  There has been no communication between them since the mother left the home of the paternal grandparents in February 2016.  Their only communication has been between lawyers.  The mother said that after the father failed to make the children available for supervised time earlier this year she has been regularly sending him text messages to enquire about their welfare. She said that he has not responded to any of her text messages.

4. The father made it very clear that he has no respect for the mother since she made the sexual abuse allegations against his father.

5. In my view, in all the circumstances of the parties’ poor relationship, this Court could have no confidence that they would be able to develop a level of co-operation which would enable them to jointly make important decisions about the children’s welfare.  In my view, it would not be in the best interests of these children for their parents to have equal shared parental responsibility for them. In my view, it will be necessary therefore, for sole parental responsibility to be provided to one of the parents only.

6. I shall refer to this matter again below.

Section 60CC Considerations

1. How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

1. The primary considerations are set out in s 60CC(2) of the Act. These are:

   ·The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.

2. Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

1. The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The paternal grandparents informed the Family Consultant that both children said they do not wish to see the mother and refer to her as “bad Mummy”.  The paternal grandfather said that the children have informed him prior to going to the Contact Centre that they do not want to go and see their mother.

2. The Family Consultant said that on the day of the assessment when she informed X that he would be seeing his mother later he became quiet, cast his eyes downward and said: “Mother makes me angry… She choked me and hurt Y… I don’t want to see her again … No things I like doing with her”.

3. The Family Consultant said that at the same session, Y said: “Mother’s a bad person… I will punch her and kick her… Me and X feel angry when we go and see her… We just run away from her and don’t play with her… I feel scared when I see Mother… Actually, no”.

4. When the Family Consultant told him he would be seeing her soon, Y became quiet and he said “I don’t know.  Let’s go and get X”.

5. The Family Consultant said that these statements by the children were quite inconsistent with her actual experience of them in the session with their mother. As indicated below, she said that she observed warm and loving interchanges between the children and their mother.

6. In my view, it is clear that the father, his partner Ms G and his parents have a very poor view of the mother and that no permission, let alone encouragement, has been given to the children to be able to continue their relationship with their mother.  In fact, there is some evidence which would suggest that the children have been coached to say negative things about their mother.  This is suggested from some of the notes of the Contact Centre and from the Family Report.

7. In the complex circumstances of this case, I place very little weight on these negative views which the children have expressed about their mother.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child) 

1. The children have close and loving relationships with their father, Ms G, their step-sister W, their sister Z and their paternal grandparents with whom they have lived for a significant part of their lives.

2. On the other hand, the children appear to have a somewhat conflicted relationship with their mother. On the one hand, they voice the quite negative comments such as those referred to above.  But the Family Consultant observed a warmth in the interactions between the children and their mother on the day of her assessment and the notes of the Contact Centre record similar warmth observed.

3. The Family Consultant who interviewed the parties and the children on 1 April 2016 for the Child Inclusive Conference recorded in her Memorandum that day as follows:

   When the mother entered the observation session the children both ran to her and hugged her.  Both children remained in close proximity to her (touching her or within touching range, often they draped themselves over her or over her lap) for most of the session.  The first thing that Y said to her was “I thought you were a bad mummy”. The mother said “No, I am not a bad mummy”.  X’s first words were “I missed you” (they both spontaneously told the mother this later).  Both of the children told the mother during the session (spontaneously and in response to the mother saying it), “I love you”. The children were clearly very comfortable, happy and settled in the session.  A sense of calmness typified the time the boys spent with their mother.  The mother engaged in a child focussed manner throughout the session and easily managed an issue which arose between the boys about each wanting the same toy calm [sic] by negotiating with the boys and they easily complied with her direction.

4. In April 2017 the children visited the mother at the Contact Centre and the notes of the Centre indicate that upon arrival, Y ran to his mother “with arms outstretched”.  The notes for 12 April 2017 indicate “both boys hugged (their mother) and told her they loved her”.

5. At the assessment by Ms L for her report, she said as follows:

   X and Y were observed together with Ms Pinfold.  While Y immediately ran to her and cuddled her, X started giggling and ran away and hid, but a short time later came into closer proximity with her.  Ms Pinfold supported the children’s exploration and choice of games, however X continued to play on his own while Y played cars with Ms Pinfold.  Ms Pinfold continually encouraged X to join them in a calm and gentle manner, and, when he declined, drew him into friendly and relaxed conversation. She negotiated with both children to play a mutually acceptable game, and X then joined in.

6. Notwithstanding the father and paternal grandparents said that the children say they do not wish to visit their mother at the Contact Centre, the notes from the Centre contradict this.  There are many references to the children having enjoyable times with their mother at the Centre and that the interchanges have been warm, affectionate and responsive.  The observations by workers at the Centre reinforce those of both Family Consultants who have been involved with the children and the parents that the mother has engaged with them appropriately and been able to parent them competently in the observed sessions.

7. In my view, there is ample objective evidence of a close and loving relationship between the children and their mother.

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

1. Until the parents separated in 2015 it appears that they were each involved in the major decisions for the children.  For example the mother said that they were both involved in the decision about X’s school.  By the time that Y was to be enrolled, the mother had left the grandparents’ home and that decision was made by the father alone.

2. The mother has been away from the children’s home since February 2016. It is clear that the father and his parents have not involved her in any of the major decisions about the children.  The mother has been very active in endeavouring to be able to spend time with the children.  Opportunity for this has been very limited by the view of the father and his parents that she presents as a risk to the children and that any time spent between them must be supervised.

Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. This consideration has not had prominence in these proceedings.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

1. The children have been living in the care of the father and in the absence of their mother now for approximately three and a half years.  If they were to be moved to live in the primary care of their mother, this would be a very significant change for them indeed.  Not only would they be removed from daily contact with their father, Ms G and their two sisters, but they would be living in a household comprising their mother and her husband, Mr H, whom the children have never met.  The Family Consultant said that such a significant change would probably be met not only with immediate sadness and grief by the children but also with a sense of confusion and loss.

2. On the other hand, if the children were to lose their relationship with their mother, the Family Consultant said that there would be likely to be serious negative long term effects on their social development, their emotional development and their mental health.  She said that they would be more prone to developing anxiety and depression as well as feelings of rejection which they might take into their future relationships, as well as problems with identity.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. 

1. The parents live in the same regional area. It is the case that if the children were to live primarily with their mother, this would involve them in longer travelling time to school.  But in my view however, the difference would not be onerous, possibly an additional forty minutes travel time for the day.

2. If supervised time was to continue, this would involve some practical difficulties.  The father has demonstrated that he has had some practical difficulty with the travelling involved to get to the Contact Centre, with the consequence being that the children have simply missed out on spending time with their mother at the Contact Centre now on many occasions.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

The Father

1. The mother conceded that the father was capable of caring for the children in a physical sense.

2. The Family Consultant reported that the father was attentive to the children’s needs throughout the assessment day and was warmly responsive to them.  The Family Consultant said she observed during the session that while the children played a game the father gave them instructions, sometimes doing things for them that they struggled to do for themselves.  When they began to squabble he gently gained compliance by moving their hands away from each other. Sometimes when they became distracted, unfocussed or disobedient, he would gain their compliance by physically picking them up.  When Y ran out of the room the father pursued him and carried him back with Y cuddling into his shoulder.

3. The mother informed the Family Consultant that the father had been an attentive and involved father to X and assisted and supported her as primary parent.  She said however that this was not the case after Y’s birth when the father participated less as a parent, was critical of her and went out with his friends frequently.

4. On the other hand, the father has demonstrated that he does not have the capacity to be able to encourage the children to have a relationship with their mother.  When asked by counsel for the ICL whether he could say anything positive about the mother, he answered that because of his personal experience it was hard and, after further thought, said that he could not.

5. The father acknowledged that the children had been in the habit of referring to their mother as “Bad mummy”.  He said that he had been able to have them change this to “mother”. He acknowledged that the children call his partner, Ms G, “mummy”. Ms G said that she and the mother had agreed that the children call them by such names.

6. It is troubling, and in my view reflects poorly on the father as a parent, that the children refer to their mother in negative terms.  For example, the Family Consultant said that at her assessment interview, both X and Y used similar wording about the reasons for their attendance.  X said “Mother choked me and hurt Y”.  Y said “She choked X and tried to cut me on the eye with a knife… She’s a really bad person”.  The Family Consultant said that each child repeated this wording on a couple of occasions.  I note that there have been similar, very negative things said by the children to their mother during supervised contact sessions.  As indicated above, these remarks by the children stand in marked contrast of the observations of the children with their mother by both Family Consultants and various workers at the Contact Centre.

7. There have been numerous occasions when the father failed to deliver the children for supervised time with their mother at the Contact Centre as required by the current Court orders.  The result is that the children have not spent any time with their mother since 9 February 2019.  The father and Ms G endeavoured to explain the reasons for this.  The explanations for almost the entirety of the occasions, in my view, reflected the father prioritising various other matters including work and occasions of both X’s birthday and X’s sister Z’s birthday.  In my view, this indicates a lack of serious commitment by the father to assisting the children to have a relationship with their mother.

8. The father and Ms G have struggled to ensure that the children attend school on time. During X’s first semester in 2018, he was late on 45 occasions.  Y was late between 40 and 45 occasions over the same period. The father blamed the children for not getting to roll call on time.  This was unconvincing.  Ms G appeared to explain it in terms of difficulties she was having managing the requirements of four young children first thing in the morning.

The Mother

1. In my view, it is clear that prior to separation the mother was the children’s primary caregiver.  The Child Inclusive Conference Memorandum by Family Consultant Ms R dated 1 April 2016 recorded that it was common ground that prior to separation the mother was the children’s primary caregiver.

2. The father conceded during cross-examination that the mother was capable of looking after the children.

3. Family Consultant Ms L expressed the view that the mother has appropriate parenting skills and that these are in some ways better than the father’s parenting skills. She reported as follows:

   Ms Pinfold was observed to gently set behavioural boundaries for the children, who responded with easy compliance.  She supported them by positioning their hands correctly when they were unable to perform a task requiring more complex fine motor skills.  Y voluntarily sat on Ms Pinfold’s lap while X sat in very close proximity next to her, and both children chatted, laughed and smiled together with her.  X and Y maintained focus without distraction for a lengthy period of time.  When X returned to an individual activity, Ms Pinfold continued to engage him in conversation, to which he responded with smiles and comments such as “wow”.

4. The mother acknowledged that she had never really spent extended periods as sole parent for the children.

5. The mother informed the Family Consultant that she understands that the children need to have a relationship with, and know that they are loved by, both parents.

6. On the other hand, there are some concerns about the mother’s parenting capacity.  She conceded that she was struggling with the care of the children after Y was born.  She said that until that time the father had assisted her and had been involved with the care of X during X’s first year.  But she said that after that the father did not assist her much.  She conceded that there were times when she presented X at Day Care unbathed, smelling of body odour and with a dirty nappy. Clearly this was the situation at various times during 2015.  I note that the mother was suffering from depression in 2015. There was an occasion on 19 June 2015 when the father delivered Y to Day Care wearing new shoes and new clothes.  The Day Care Centre notes indicate he was very clean and did not smell.  The notes indicated “This was the first time we had witnessed Y like this”. But this is not to say that the father had always presented Y in this condition.  The notes also record that on 6 November 2015 Y was delivered by both the mother and the father with dirt on his face, hands and clothes and with a dirty nappy.  The staff bathed Y and dressed him in their clean spare clothes on that occasion.

7. There are also the allegations against the mother that she physically abused the children. I shall refer further to these below.

Ms G

1. Ms G is, in reality, the children’s step-mother.  She prepares their meals, plays with them, does craft activities and takes them to and from school

2. Ms G appears to be well able to care for the children in terms of their physical needs. But, as indicated above, she shares the father’s very poor view of the mother and, like him, appears not to have been able to protect the children from this negative view. Worse still, Ms G has not been able to be committed to assisting the children to have a relationship with their mother and does not think that there would be any value for the children in having such a relationship.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

1. X is in year two at Town E Public School. He was diagnosed with ADHD in 2013 by Dr T, paediatrician, who prescribed dexamphetamine.

2. In 2015 X commenced treatment by Dr S, an eye specialist, for difficulties with his sight. X also has learning difficulties and speech delay. He receives regular treatment from an occupational therapist for difficulties with his fine and gross motor skills.

3. The Family Consultant said that in the session, X was highly distractible and sometimes would not answer a question.  She said that his speech was difficult to understand and his fine motor skills appeared to be limited for his age.

4. Y is in good health apart from a wandering eye. The Family Consultant said that Y presented as a bright and friendly child who was full of energy yet able to concentrate on tasks at an age-appropriate level.  She observed him to jump, hop and run with ease and was able to manipulate small objects well.  His pencil grip was, however, extremely awkward and his drawing skills were therefore limited.  The Family Consultant said that both parents agree that Y does not have additional needs and appears to be progressing well in his development, and this matched his presentation.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;

1. The mother informed the Family Consultant that, according to her father, she has indigenous heritage. She informed the Family Consultant that she does not identify as indigenous.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. The father, Ms G and the paternal grandparents have provided well for the children’s physical needs. Having said this, it is of concern that the father and Ms G have not always been able to ensure punctuality in the children’s attendance at school.

2. The father has demonstrated a very serious deficiency in his parenting ability and attitude. This is that he has let his own poor view of the mother stand in the way of a proper commitment to facilitating the children to have a relationship with their mother.

3. The mother, overall, has demonstrated a reasonable attitude to the children and to the responsibilities of parenthood.  Unfortunately, however, there have been some lapses.  I have a lingering concern that, during 2015, the mother was really struggling with depression and felt unsupported by the father and might have inappropriately disciplined X on occasions.  I shall refer to this again below.  During this period also, as indicated above, there were some lapses on the mother’s part in presenting the children to Day Care clean and appropriately dressed.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

1. The mother informed the Family Consultant that there was never any physical violence from the father towards her.  But she said that he was sometimes critical of her and made her feel worthless by making demeaning comments.

2. The father agreed that there was never physical violence. He said that they had “verbal arguments” including “sometimes a bit of shouting”.  The father denied that he was critical of her or that he belittled her.  I must say I prefer the mother’s evidence that he denigrated her, including in the presence of the children, over the father’s denials.

3. The father and the paternal grandparents said that they witnessed the mother physically and verbally abusing the children over many years.  

4. As indicated above, the mother has made very serious allegations that the paternal grandfather sexually abused her over some years.  The mother also said that the paternal grandfather engaged in controlling behaviour towards her.  She said that she was scared of him. The grandfather denied these allegations.

5. I prefer the evidence of the mother over that of the paternal grandfather in relation to her allegations about control.  The mother said that he “confiscated” her phone and her laptop computer.  I accept that he removed her phone from her.  The mother found it necessary to seek the assistance of the police in leaving the home of the paternal grandparents on 23 February 2016.  The police record for that evening indicates that the police informed the paternal grandfather that the mother wished to leave and that they had the opinion that the grandfather was not permitting her to leave.  Although the grandfather said he indicated that she was free to leave, I prefer the police record about this.  This noted that the paternal grandfather said “If you go, you won’t be coming back and you’re not taking the kids”.  The grandfather had denied that he said this.  The police record went on to indicate as follows:

   Whilst (the mother) packed a small number of belongings, Crammond has stood over her watching every move.  He also asked police to leave whilst Pinfold packed her things.  Police refused to leave as they formed the opinion that Crammond would attempt to influence or threaten (the mother).

6. In my view, this was an example of control.

7. The clear sense I had when the mother was being cross-examined in relation to her allegations against the grandfather was that she felt very intimidated by him and had a strong sense that she had to comply with whatever he required.

Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

1. I am not aware of any current family violence order.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The parties have been involved in this litigation now over some years.  It is unclear to me that if I was to make a particular order this might be least likely to lead to further proceedings.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

1. As indicated above, the mother is married to Mr H.  He has not met the children but he is very supportive of the mother’s relationship with them. Mr H does not have children of his own but he has many nieces and nephews ranging in age from three to 28 years.  He was previously in a longstanding relationship with a woman who had a disabled child.  He said that before their separation he had been caring for that child most of the time.

2. Mr H suffered a very serious accident when he was hit by a car at the age of eight years.  He suffered many injuries, including serious head injuries.

3. Mr H has a criminal record for offences involving theft and dishonesty but those offences occurred when he was young and he has not offended for many years.

4. I must say I was impressed by Mr H and think he would be very supportive of the mother and the children, if he had opportunity to do so.

Primary Considerations

1. As indicated above, the first of the primary considerations is the benefit to the children of having a meaningful relationship with both of their parents.

2. It is clear that on the objective evidence these children have a close and loving relationship not only with their father but also with their mother.  The assessments by two Family Consultants and the reports from officers of the Contact Centre make this clear.  Accordingly, in my view, it would be in the best interests of the children to have proper opportunity to maintain and develop meaningful relationships with both of their parents, provided that such opportunity would not compromise their safety.

3. The second of the primary considerations is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  And in applying this consideration the Court is required to give greater weight to this second primary consideration.

4. Proper regard to this consideration will require a weighing of risks for these children in the parenting proposals of each of their parents.  In my view, whatever parenting arrangements the Court puts in place for the children will involve some risk.

5. Dealing first with the father’s proposal, namely, that the children live with him, that he have sole parental responsibility for the children and that they spend no time or only supervised time with the mother until such time as there can be confidence that she is managing her mental health.  As I have said, there is no question that the father and Ms G have been providing a good level of physical care for the children apart from the lapses in school punctuality.  And living in that household enables the children daily contact with their sisters, W and Z, with whom they obviously have close relationships.  It also enables them to have regular contact with their paternal grandparents with whom they also have close relationships.  As I have said, Ms G is an impressive mother who appears to be managing to provide the primary care for the four children well.

6. The difficulty for the children in this parenting arrangement is that each of the adults in the father’s family, that is the father, Ms G and the paternal grandparents, have extremely poor opinions of the mother.  They all have the view that there could be nothing of value for the children in having a relationship with the mother.

7. This appears to be reflected in the disrespectful approach which the father has taken in relation to complying with the current Court orders which require the children to be presented fortnightly to the Contact Centre to enable them to spend supervised time with the mother.  As I have said, the father has not complied with his requirements under the law in this regard since 9 February 2019.

8. In these circumstances, it is extremely difficult for this Court to have optimism that if the Court was to make orders for the children to spend time with the mother, even on a supervised basis, the father would facilitate such opportunities for the children because he has failed very badly in this to date.  Accordingly, the risk for the children would be that it would be very likely that they would end up with no relationship with their mother.  I accept Ms L’s view that this would be very bad for the children’s development.

9. In relation to the mother’s allegations that she was sexually abused by the paternal grandfather, I must say I tended to prefer the mother’s evidence to that of the grandfather.  The mother has given a fairly consistent account to numerous different persons about this.  I thought her body language during her cross-examination about this was consistent with her account.  But the distress and discomfort, possibly even fear I thought she was demonstrating at the time, could possibly be attributed to stress if in fact she had fabricated her allegations.

10. What stands against the mother’s account, however, was the text messages from her friend Mr GG suggesting that she fabricate sexual abuse allegations against the grandfather and the timing of this.

11. The mother’s allegations are very serious. If the grandfather acted in the manner alleged by the mother, such behaviour would almost certainly have breached the criminal law. In considering whether I could arrive at a finding that the grandfather had behaved as alleged I would have to be satisfied at the standard of proof set out in s 140(1) of the Evidence Act 1995 (Cth). This requires a court to take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceedings and the gravity of the matters alleged.

12. On this standard of proof I cannot be satisfied that the grandfather acted as alleged.

13. Having said this, I cannot be satisfied that he did not act as alleged.

14. In these circumstances and bearing in mind that the mother said she does not regard the children to be at risk of sexual abuse from the grandfather, in my view, the grandfather does not constitute an unacceptable risk to the children.  As I have said, I have some concerns about what I am concerned can be a tendency to engage in controlling behaviour on his part.  But this does not amount to an unacceptable risk.

15. On the other hand, there would also be risks for the children if they were to live with the mother and spend time with the father.

16. As indicated above, the father and the paternal grandparents have alleged that the mother has hit the children with force, has shaken X when he was approximately 12 months of age and has caused X’s teeth to penetrate his lip and other allegations.  As I have said, there is no objective evidence of such behaviour.  Both the father and the paternal grandfather said that they made no complaint to the police or to FACS. The father said that he was young at the time and was not aware that FACS was the relevant authority to whom complaints about child abuse would be made and in any event he did not want the family to come to the attention of the relevant authorities for fear that the children would be removed from his care. The paternal grandfather said he was trying to resolve what he said were the mother’s difficulties, within the family.

17. It was submitted, by both counsel for the ICL and counsel for the father, that the state of the evidence about these allegations is such that the Court would be unable to arrive at a finding about this. I agree with these submissions. As is the case of the mother’s sexual abuse allegations against the paternal grandfather, the allegations of violence against the children raise very serious questions including possible breaches of the law. In these circumstances I accept that s 140 of the Evidence Act 1995 (Cth) also applies. In considering any finding the Court must have regard to the matters referred to above. On this standard of proof I could not be satisfied that the evidence before the Court about these allegations is sufficient to find them proved. But similarly I cannot be satisfied that they did not occur.

18. As was submitted by counsel for the father, I must make an assessment of any risk the mother might pose to the children with regard to physical abuse. I must say I do have some lingering doubt about whether some of the behaviour alleged by the father and his parents against the mother might have occurred.

19. The mother did concede to the police around the time of leaving the grandparents’ home in February 2016 that she did smack the children but said that this was on the bottom, on the leg and on the hand.  The police notes record that such would be “within lawful chastisement”.  What we do know is that the mother was having some difficulty in parenting the children.  She said that this was the case after Y was born.  As indicated above, the records of the Early Childhood Centre show that the children were presented there during 2015 in an unclean condition.  And as also indicated above, the mother conceded that she did suffer from bouts of depression.

20. Accordingly, in assessing risk, I cannot dismiss entirely some possibility that the mother might have engaged in some violence against the children. This would place the children at some risk of further physical abuse.

21. Another risk which must be considered is the state of the mother’s mental health.  As indicated above, Ms O, clinical psychologist, expressed the opinion that the mother no longer meets diagnostic criteria for depression, does not endorse symptoms of a mood disorder, does not meet diagnostic criteria for Post-Traumatic Stress Disorder and does not report any current mental health concerns. Ms O said that appeared to be consistent with the mother’s presentation during her assessment.

22. The Family Consultant said that if the mother had been physically abusive towards the children and she suffered from mental health problems, the children might be at risk of further physical, emotional and psychological abuse in the mother’s care.  She said that there could also be ongoing developmental and mental health implications for them including learning delay, social and behavioural problems and physical and mental health problems.

23. The Family Consultant also said that if the mother was neglectful of the children they would be at risk of suffering not only physically, but developmentally, emotionally, psychologically and socially in the longer term.

24. As I have said, the children have been in their father’s care now for more than three years and appear to be well settled in his household.  Removal of the children would almost certainly cause them considerable distress.  I accept that they would be likely to have feelings of sadness, a sense of loss and some confusion about why they have changed from living with the father, Ms G and their sisters to living with the mother and Mr H, whom they have never met.

25. In weighing the risks to the children of each of the proposed parenting arrangements, I have come to the view that the risks for them in remaining living with their father outweigh the risks in moving to live with their mother.

26. As indicated above, I have a clear view that if the children remain living with their father, it is almost certain that they will lose their relationships with their mother.  The Family Consultant has opined that such a loss would be likely to have very serious longer term consequences for the children including vulnerability to developing serious mental health issues and difficulty in forming relationships.

27. So far as the risks to the children in living with their mother are concerned, in my view, there is some reason to regard the risks to be mitigated to some extent.

28. Firstly, the mother is no longer living with the father and his parents with all the distress that this appears to have caused her.  Instead she is married and Mr H and the mother appear to be living in a stable relationship.  Although Mr H has not met the children, and has not had the experience of parenting any children of his own, he has many nieces and nephews with whom he appears to have good relationships and he has had the experience of caring for a disabled child.

29. I accept the Family Consultant’s opinion that the mother has appropriate parenting skills and she thought these could be stronger than the father’s parenting skills.  In addition, the mother has undertaken several post-separation parenting courses as recommended by the Family Consultant.

30. There is no evidence of recurrence of the mother’s previous mental health symptoms.

31. So far as my lingering doubt about the possibility that the mother might have perpetrated violence against the children is concerned, certain matters are relevant.  As I have said, there is no evidence of her being anxious or depressed and her mental health appears stable.  The children are older now so that the previous demands when they were very young might be somewhat lighter. I note however that X has special needs and that the behaviour of both boys can be challenging.

Conclusion

1. In my view, it would be in the children’s best interests for them to have a meaningful relationship not only with their father but also with their mother.  As I have said, I consider there to be virtually no prospect of this if the status quo was to remain.  The father has shown himself to be incapable of facilitating even supervised time between the children and their mother.

2. I have referred to the very serious risks for the children if they were to lose their relationships with their mother.

3. I have considered the risks for the children if they move to live with their mother. I do not regard the mother as presenting an unacceptable risk for the children for the reasons above.

4. As indicated above, the mother said that she understands that the children need to have a relationship with, and know that they are loved by, both parents. I am confident that she will be able to facilitate maintenance of the children’s meaningful relationship with the father.

5. In weighing the risks, as I have said, in my view, for the boys to live primarily with their father is the greater risk.

6. Accordingly, I have formed the view that the best interests of the children would be served by them moving to live with their mother and spending significant and substantial time with their father.

7. In her application the mother sought that the change of the children’s residence to living with her be staged over several weekends. I am concerned that because this would involve so many changeovers, this could end up being  more difficult and distressing for the children than making the full change of residence immediately.

8. I propose to order residence to change as from tomorrow.

9. Because I have determined that the children’s best interests require that they live with the mother, I shall make an order that she have sole parental responsibility for them.

Time Spent with the Father

1. As I have said, the children have a close, loving relationship with the father, Ms G and their sisters.  It will be important for them to have good opportunity to maintain and develop these close relationships.

2. In my view, it would be in the children’s interests to have substantial and significant time with their father.

3. The ICL submitted that the children spend time with their father each alternate weekend from after school Friday to before school Monday during school terms. The ICL submitted that the children spend time with their father for the first week of the school holidays at the end of terms 1, 2 and 3, two consecutive weeks during the end of year school holidays and special days as specified.

4. I accept the submissions by the ICL about this and shall make orders to this effect, noting that such an arrangement would provide substantial and significant time between the children and their father, Ms G and their sisters.  Such an arrangement would be reasonably practicable so long as changeover can be from school as much as possible.

5. In my view, it would be in the children’s interests for them to have a period to settle into their mother’s care without the disruption of spending time with their father for a period.  I would have preferred a settling in period of approximately four weeks.  But I note that school holidays commence on 27 September 2019 so that weekend time would not be able to commence until 14 October 2019.

6. In these circumstances, I propose that the children spend time with their father from after school on 25 September 2019 to before school on 27 September 2019. They are to live with their mother during the school holidays and commence weekend time with their father on the first weekend after school recommences (on 14 October 2019).  So weekend time with the father will commence on 18 October 2019.

I certify that the preceding two hundred and seventy three (273) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 3 September 2019.

Associate: 

Date:  3 September 2019

Annexure “A”

Orders sought by Applicant Mother

1. That until Order 5 comes into effect X born … 2010 and Y born … 2013 (“the children”) live with the father.

2. That the parents have equal shares parental responsibility.  That the mother have sole parental responsibility.

3. That for two consecutive weekends the children spend time with the mother from 9am on Saturday until 5pm on Sunday.

4. That for a further two weeks immediately following Order 3 the children spend time with the mother from 5pm on Friday until 5pm on Sunday and from 3pm on Wednesday until 9am on Thursday.

5. That from the completion of the time in 3 and 4 above and commencing the following Saturday at 10am the children live with the mother.

6. That from the commencement of Order 5, the children spend time and communicate with the father:

   DURING SCHOOL TERM TIME

   (a)Each alternate weekend from the completion of school on Friday until the commencement of school on Monday.

   (b)Each alternate Wednesday from the completion of school until the commencement of school on Thursday.

   OUTSIDE SCHOOL TERM

   (c)For half of all school holidays.

   (d)By telephone, Skype or other electronic means at reasonable times and with reasonable frequency.

Annexure “B”

Orders sought by the Respondent Father

1. That the Father shall have sole parental responsibility for the children, X (dob: …2010) and Y (dob: …2013).

2. That the children, X (dob: …2010) and Y (dob: …2013), live with the Father.

3. That the Mother spend time with the children as determined by the Court.

Annexure “C”

Orders sought by the Independent Children’s Lawyer

OPTION 1

1. That all previous parenting orders regarding the children X born … 2010 and Y born … 2013 be and are hereby discharged.

2. That the children live with the mother.

3. That the mother have sole parental responsibility for the children.

4. That the father shall deliver the children to the mother at 10:30am at the office of Child Dispute Services, Newcastle Registry Family Court of Australia on the week day immediately following the making of these orders.

5. That the father shall spend no time with the children or communicate with the children [for] four weeks following the date in Order 4 of these orders.

6. Commencing the Sunday immediately following the four week period referred to in Order 5 of these orders the children shall spend time with the father as follows:

   a.    Each alternate weekend from Friday after school to Monday morning before school during the school term.

   b.    For the first week of the school holidays at the end of terms 1, 2 and 3.

   c.    For two consecutive weeks during the long school holidays at the end of Term 4, with these weeks commencing 2 January 2021, and each year thereafter.

   d.    Each Christmas from 5:00pm Christmas Eve to 5:00pm Christmas Day in [odd] number years commencing 2019 and from 5:00pm Christmas Day to 5:00pm Boxing Day in even number years commencing 2020.

   e.    On Easter Sunday, when the children are not already spending time with the father, from 9.30am to 5.00pm.

   f.    At other times as agreed between the parties in writing (including SMS).

7. That changeover shall take place to and from school at the beginning and end of the school day and otherwise during non-school days at a public place such as MacDonald’s Family Restaurant closest to the father’s home, and for the purposes of changeover:

   a)    the mother shall deliver the children to the father at the beginning of [his] time with the children and

   b)   the father shall deliver the children to the mother at the end of [his] time with the children, and

   c)   neither party shall be accompanied by any other person to changeover.

8. That for the purposes of the children spending school holiday time with their father pursuant to these orders, the mother shall deliver the children to the father at 9.30am on the first Saturday immediately after the last day of the school term, and the father shall deliver the children to the mother at the end of his time with them at 5.00pm on the second Saturday after the last day of the school term.

9. That on the occasions that the father is responsible for delivering the children to school at the end of his time with them, he shall ensure that the children arrive at school at least fifteen minutes prior to the start of the school day.

10. [deleted]

11. That each parent keep the other informed of their current contact address, mobile and any available contact email addresses and advise the other parent of any change thereto seven days (7) days prior to any such change.

12. That the father shall be permitted to attend the children’s pre-school or school for functions that parents would ordinarily attend including but not limited to such events such as Easter Hat Parades, Christmas functions and prize giving events, and shall be permitted to contact the children’s school and pre-school to obtain the dates [and] times of such events.

13. The mother shall advise and keep the father advised in writing of the dates and times that the children are to attend upon specialists, including but not limited to any speech therapists, eye specialists or psychologists, and the mother shall be at liberty to contact these therapists and specialists and obtain copies of any reports about the children at her own cost.

14. That in the event of a medical emergency involving the children, the parent with whom the children is with shall contact the other parent forthwith by SMS or  telephone to inform them of the nature of the emergency, and the name, address and telephone number of the hospital to which they have taken the children.

15. That each of the parties be hereby restrained by injunction from:

    a.    Abusing or insulting or otherwise denigrating the other party; and

    b.    Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, and from permitting any other person, including members of their families to do so; and

    c.    Shall remove the children from any place where other persons attempt to discuss these proceedings in the presence or hearing of the children.

16. The mother and Father are restrained by injunction from placing photographs of the children on FaceBook, Snapchat or any other form of social media and shall take all reasonable and necessary steps to ensure that no other member of their immediate and extended families place photographs of the children on social media.

OPTION 2

1. That all previous parenting orders regarding the children X born … 2010 and Y born … 2013 be and are discharged.

2. That the children live with the father.

3. That the father have sole parental responsibility for the children.

4. That commencing the Sunday immediately following the date of these orders the children spend time with the mother as follows:

   a.    Each Sunday from 9:30am to 2:00pm for a period of four weeks;

   b.    Thereafter each Sunday from 9:30am to 5:00pm for a period of four weeks;

   c.    Thereafter each alternate weekend from Saturday at 9.30am to Sunday at 9.30am for a period of four weekends;

   d.    Thereafter each alternate weekend from Friday after school to Monday morning before school during the school term.

5. Commencing the first weekend after the school term begins in February 2020 the children shall spend time with the mother as follows:

   a.    Each alternate weekend from Friday after school to Monday morning before school during the school term.

   b.    For the first week of the school holidays at the end of terms 1, 2 and 3.

   c.    For two consecutive weeks during the long school holidays at the end of Term 4, with these weeks commencing 2 January 2021, and each year thereafter.

   d.    Each Christmas from 5:00pm Christmas Eve to 5:00pm Christmas Day in [odd] number years commencing 2019 and from 5:00pm Christmas Day to 5:00pm Boxing Day in even number years commencing 2020.

   e.    On Easter Sunday, when the children are not already spending time with the [mother], from 9.30am to 5:00pm.

   f.    At other times as agreed between the parties in writing (including SMS).

6. That changeover shall take place to and from school at the beginning and end of the school day and otherwise during non-school days at a public place such as MacDonald’s Family Restaurant closest to the father’s home, and for the purposes of changeover:

   a)    the father shall deliver the children to the mother at the beginning of her time with the children and

   b)   the mother shall deliver the children to the father at the end of her time with the children, and

   c)   neither party shall be accompanied by any other person to changeover.

7. That for the purposes of the children spending school holiday time with their mother pursuant to these orders, the father shall deliver the children to the mother at 9.30am on the first Saturday immediately after the last day of the school term, and the mother shall deliver the children to the father at the end of her time with them at 5:00pm on the second Saturday after the last day of the school term.

8. That on the occasions that the mother is responsible for delivering the children to school at the end of her time with them, she shall ensure that the children arrive at school at least fifteen minutes prior to the start of the school day.

9. That the mother shall not leave the children in the sole care of any other adults while they are spending time with her.

10. That each parent shall keep the other informed of their current contact address, mobile and any available contact email addresses and advise the other parent of any change thereto seven days (7) days prior to any such change.

11. That the mother shall be permitted to attend the children’s pre-school or school for functions that parents would ordinarily attend including but not limited to such events such as Easter Hat Parades, Christmas functions and prize giving events, and shall be permitted to contact the children’s school and pre-school to obtain the dates [and] times of such events.

12. The father shall advise and keep the mother advised in writing of the dates and times that the children are to attend upon specialists, including but not limited to any speech therapists, eye specialists or psychologists, and the mother shall be at liberty to contact these therapists and specialists and obtain copies of any reports about the children at her own cost.

13. That in the event of a medical emergency involving the children, the parent with whom the children is with shall contact the other parent forthwith by SMS or telephone to inform them of the nature of the emergency, and the name, address and telephone number of the hospital to which they have taken the children.

14. That each of the parties be hereby restrained by injunction from:

    a.    Abusing or insulting or otherwise denigrating the other party; and

    b.    Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, and from permitting any other person, including members of their families to do so; and

    c.    Shall remove the children from any place where other persons attempt to discuss these proceedings in the presence or hearing of the children.

15. The mother and Father are restrained by injunction from placing photographs of the children on FaceBook, Snapchat or any other form of social media and shall take all reasonable and necessary steps to ensure that no other member of their immediate and extended families place photographs of the children on social media.