Ragno and Nemet and Anor (No.2)

[2018] FCCA 3817

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAGNO & NEMET & ANOR (No.2) [2018] FCCA 3817

Catchwords:
FAMILY – Parenting – application for the children to live with the maternal grandmother – allegations of mental ill-health – allegations of illicit drug use –allegation of sexual assault – credibility – no evidence of current illicit drug use – physical needs of the children are being met – where there is high-level conflict – children to live with mother. 

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Applicant: MS RAGNO

First Respondent: MS NEMET

Second Respondent: MR JACKSON

File Number: DNC 479 of 2017

Judgment of: Judge Young

Hearing dates: 7, 8, 9 November 2018

Date of Last Submission: 9 November 2018

Delivered at: Darwin

Delivered on: 21 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Holtham

Solicitors for the Applicant: Story & Associates

Counsel for the Respondent: Ms Czislowski

Solicitors for the Respondent: Ward Keller

ORDERS

Arrangements for the children

1. That the mother have sole parental responsibility for the children [W] born …2007, [X] born …2008, [Y] born …2010 and [Z] born …2011, (‘the children’).

2. That the children live with the mother and spend time with the Applicant Maternal Grandmother (‘Grandmother’) as agreed but failing agreement:

   (a)From Friday after school (or from after school Thursday if Friday is a public holiday) until before school on Monday (or before school Tuesday if Monday is a public holiday) in each alternate week; and

   (b)At other times as agreed to by the Grandmother and Respondent Mother (‘Mother’) or as may be requested by the children or any of them.

   (c)That for the purposes of Order 2(a), during school holidays the children's time with the grandmother shall commence at 9am Friday and conclude at 5pm Monday.

   (d)That should the children's time with the grandmother coincide with Christmas Day or the Easter long weekend, time shall be suspended for that weekend, and the children shall spend make up time with the grandmother the next weekend.

   NOTING that the mother is to encourage each of the children to spend time with the Grandmother but is not required to coerce them.

3. That changeover is to occur at the pickup/drop off zone of the children’s school and otherwise at CatholicCare Suburb A, noting that if CatholicCare is unavailable to conduct handover at the times contained within these Orders, then handover will occur at the time nominated by CatholicCare.

Communication

1. That the mother shall send an email to the grandmother about any important issues relating to the children, including medical and educational issues, on Friday afternoon immediately before the grandmother’s time, and the grandmother shall send an email to the mother about any important issues relating to the children, including medical and educational issues, on Sunday evening/Monday morning immediately before the grandmother’s time concludes. This email shall include details of any medical appointments the children have attended.

2. That in the case of an emergency involving any of the children, the party who has care of the children shall contact the other party by telephone as soon as practicable.

3. That the parties shall keep the other informed of any change of their email address, mobile telephone number and residential address and inform the other within 48 hours of any such change occurring.

Injunctions

Without admission as to need:

1. That the parties are restrained from, and an injunction is granted restraining the parties from:

   (a)Physically disciplining the children or allowing others to do so while in their care;

   (b)Denigrating each other or any member of their family or persons of significance within the hearing or presence of the child or allowing others to do so;

   (c)Consuming illicit substances or alcohol to excess whilst the children are in their respective care or exposing them to persons so consuming;

   (d)Smoking in the presence of the children or allowing other persons to smoke in the presence of the children;

   (e)Attending the residence of each other without the other party’s prior permission.

   (f)Questioning the children about the other party or other party’s household;

   (g)Discussing inappropriate adult issues with the children;

   (h)Discussing or otherwise exposing the children to particulars of the family law proceedings;

   (i)That the mother shall not permit the child, [W] to be left alone with the maternal grandfather.

2. That both parties shall ensure that the children sleep in their own beds and that [W], in particular, is afforded personal privacy.

3. That both parties shall ensure that the children only attend the Suburb B GP Super Clinic except in the case of an emergency and the mother do all things necessary to ensure copies of the children’s medical records from the Suburb C Medical Centre are provided to the Suburb B GP Super Clinic.

Other Orders

1. That the Independent Children’s Lawyer and Court’s family consultant shall meet with the children to explain these Orders.

2. Without admission as to need, the Mother shall forthwith arrange education sessions for herself and all four children at SARC (provided there is an age appropriate program), for the purpose of preventative and protective behaviour education and provide to the Independent Children’s Lawyer evidence of attendance and completion of any education/training provided by SARC.

3. The Mother shall ensure that [W] and [X] continue receiving counselling from AnglicareNT and shall also arrange for [Y] and [Z] to also receive counselling there (provided there is an age appropriate program).

4. That the mother continues engagement with psychologist, Ms F of …Counselling for the purposes of non-reportable therapy and counselling AND continue to engage and attend all appointments as recommended by the psychologist.  In the event the Mother ceasing engagement with Ms F, the Mother shall within 14 days from the termination of that, engagement, obtain an ATAPS referral to see an alternate psychologist at …Counselling.

5. For the purposes of Order 14 above, the Independent Children’s Lawyer shall provide a joint letter of instruction to Ms F (or alternate psychologist and …Counselling), upon the mother completing 4 of the 6 initial mental health plan (or ATAPS as the case may be) sessions identifying issues to be canvassed during successive the sessions and desired outcome of engagement together with a copy of these orders.

6. That the grandmother forthwith obtain a mental health plan or ATAPS referral from her GP and engage with Ms G Psychology Services for the purpose of non-reportable therapy/counselling AND to continue to engage and attend all appointments as recommended by the psychologist.

7. For the purposes of Order 16 above, the Independent Children’s Lawyer shall provide a joint letter of instruction to Ms G identifying issues to be canvassed during the sessions and desired outcome of the engagement together with a copy of these orders.

8. That the parties forthwith enrol and complete unless they have done so already, the following, and provide a Certificate of Completion to the other party and the Independent Children’s Lawyer:

   (a)Circle of Security; and

   (b)For the Kids

   (c)Tuning into Teens

9. That the mother promptly take the child [Z] for assessment of his tip toeing and ensure that [Z] attends all physiotherapy appointments which may be made for [Z].

10. That the appointment of the Independent Children’s Lawyer continue for a period of 12 months and that the Independent Children’s Lawyer has liberty to apply.

IT IS NOTED:

A.These orders are intended to ensure the children maintain their relationship with the grandmother which the Court and the parties acknowledge is an important relationship and one which is in their best interests;

B.That the mother and grandmother will work towards re-building their relationship for the sake of the children maintaining their relationship with the grandmother.

C.These orders are made to assist the parties to undertake therapy with respect to:

(a)   their own childhood/family and trauma issues; and

(b)  the development of insight into the needs of and benefits to the children maintaining a relationship with their grandmother and the positive promotion of that relationship.

(c)  The mother will apply for a “Little Friends Scholarship” grant in order to enrol the children or any of them in extra-curricular activities.

IT IS NOTED that publication of this judgment under the pseudonym Ragno & Nemet & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 479 of 2017

MS RAGNO

Applicant

And

MS NEMET
First Respondent

MR JACKSON

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a parenting dispute between the mother and maternal grandmother of four children:  [W], aged 11, [X], aged 9, [Y], aged 7 and [Z], aged 6.  The children live with their mother and have done so all their lives.  The father of the children has played no part in the proceedings and appears to have played little or no part in the lives of the children since about 2012. 

3. The proposal of the applicant mother is that the children should live with her and spend time with the maternal grandmother. The maternal grandmother seeks orders that the children live with her. She claims that the mother is incapable of adequately caring for the children and points to the mother’s alleged mental health problems and use of illicit drugs. 

4. The mother denies the grandmother’s allegations of mental ill-health and illicit drug use.  It must be said at the outset that the allegations of illicit drug use are not supported by any independent evidence.  An order for hair follicle testing was made earlier this year and proved negative for any illicit drugs.

5. The grandmother says that the mother was able to cheat on the test results.  There is no evidence that that is the case and I am satisfied that there is no independent evidence of the mother using illicit drugs in any recent relevant period. 

6. The grandmother alleges that in the years between 2012 and 2016 when the mother and the children lived with her in Darwin and in Queensland, that she was aware of the mother’s use of cannabis and she said that she believed the mother also used methamphetamine.  The mother denied those claims, although she admitted that she had used cannabis as a teenager. 

7. The grandmother’s claims about the mother’s mental health have been the subject of assessment by a clinical psychologist, Dr H.  Dr H prepared two reports, one of which included a home visit and an observation of the mother.  Dr H did not make any assessment of any clinical mental disorder or any personality disorder but she concluded that the mother had exhibited some paranoid traits, particularly in relation to the grandmother. 

8. She also said that the mother had little insight and she expressed concern about the limited emotional engagement between the mother and the children when she observed them in the home.  I am satisfied those concerns have substance. 

9. In relation to credibility, I have reservations about the grandmother’s credibility.  The grandmother referred to an incident when [W], as a four-year old child, said to her mother that she had a sore vagina.  This, along with some other words used by the child, resulted in a report to police and the suspicion that the maternal grandfather had sexually assaulted the child.  That suspicion was investigated by the Child Abuse Task Force of the Northern Territory Police.  A forensic interview was undertaken and various other investigations.  The child did not disclose any information and the police took the inquiry no further.  The maternal grandfather was not interviewed by police.

10. In her evidence the maternal grandmother said that a couple of days after the police interview the child disclosed to her that the maternal grandfather had touched her vagina.  That allegation was not made in the maternal grandmother’s trial affidavit and was raised for the first time in cross-examination. 

11. When asked why she did not pass that information on to the police, the maternal grandmother said that she did not think it was relevant given that the child had not disclosed anything in the forensic interview a couple of days before.  I reject that explanation and I consider that the maternal grandmother’s claim is probably false.  Overall, I felt it necessary to approach her evidence with some caution. 

12. The mother was, in my view, a generally credible witness.  The reliability of her evidence was somewhat diminished in my view because of a significant lack of insight into some limitations of her parenting capacity.  Her reliability was also affected by what I find is a certain paranoid or baseless suspicion of the grandmother’s motives, as was identified by Dr H.

13. I am satisfied that in the past, particularly up until about 2016, there is evidence that the mother has had real difficulty adequately caring for the children.  There was evidence from School 1 Primary School that the children’s attendance was very poor, that on occasion the children had arrived at school without food, and various other concerning aspects. 

14. The school had reported the matter to Territory Families who attempted to engage with the mother.  In 2016 the mother, who had lived with the grandmother until about then, had a falling out with the grandmother.  The mother found some private accommodation for a relatively short period but then moved in with her father.  It appears that this relationship was strained as well because, after a physical altercation between the mother and her father, the mother left the father’s home and found emergency accommodation in a women’s shelter.

15. It was alleged that the mother and the children had been homeless for a period of four days, but I am not satisfied that is correct.  After a period, the mother and her father mended their relationship and the mother and the children returned to live in the father’s home, that is the maternal grandfather’s home. Apparently there have been no mishaps or altercations since.

16. Both the mother and the maternal grandfather gave evidence that they had discussed the earlier incident and had agreed on measures to ensure that disputes did not escalate to physical violence.  I accept that evidence. The evidence about the mother and the children over the past 18 months or so since the beginning of 2016 when the children moved to School 2 Primary School is encouraging.  Reports from the school say that the children’s attendance is satisfactory and one of the teachers said of [Y] that he was well presented.  It was said that [Y] is somewhat below levels for his year but no particular concerns are expressed by the school.

17. It was said that the four siblings were close to each other and had friends at school.  All in all, I am satisfied that the physical needs of the children are adequately met by the mother at the present time.  There was no evidence to the contrary. 

18. The real concerns about the mother’s parenting capacity arise because of question marks about her ability to provide for the emotional and intellectual needs of the children.  Dr H, the clinical psychologist, noted that during her home observation, there seemed to be very little emotional interaction between the children and their mother and they spent a great deal of time watching TV or on various screens. 

19. The psychologist expressed real concerns about the long-term welfare of the children in such an environment.  She also expressed concern about the lack of extracurricular activity of the children, such as sports or other activities.  She formed the view that the children and their mother were somewhat socially isolated. 

20. The mother in her evidence appeared to concede that she and the children were somewhat socially isolated.  She ascribes this to her lack of financial resources, being a pension income only, and lack of a car, although she said in recent times her father had purchased a car for her to use.  However, I am satisfied the problem goes beyond that, and the mother does not see particular value in such activities outside the home.  In my view, this is an aspect of the lack of insight identified by the psychologist. 

21. Both the author of the family report and the psychologist identified that the lack of emotional depth or affection between the children and their mother was problematic for their future development.  Both recognised that the mother loves the children, they loved her, and there was a close bond, but the isolation of the children poses potential dangers to their welfare and development in the long term.  I generally accept those observations.

22. The author of the family report observed that the relationship of the children to their grandmother was affectionate and joyful.  He was of the view that the relationship with the grandmother offered the children something different to their relationship with the mother.  He believes that the relationship with the grandmother is of real benefit to the children.  I accept that opinion.

23. It is apparent that the mother’s suspicion of and hostility towards the grandmother means that she is unable to recognise any real value in the relationship between her children and her mother.  Unfortunately, there has grown to be a deep suspicion and hostility in the relationship.  The grandmother also demonstrated some hostility towards her daughter.  To complicate matters, it is clear that the grandmother has a deep and abiding hostility towards the maternal grandfather from whom she separated many years ago. 

24. The author of the family report recommended that the children should transition to a shared care arrangement between the mother and the grandmother.  The grandmother, however, unequivocally stated in her evidence that she would not agree to that arrangement.

25. If the children were not to live with her, she said she would seek only that the children spend time with her on alternate weekends.  The competing propositions were, therefore, simply that the children continue to live with the mother and spent time with the grandmother or live with the grandmother and spend time with the mother. 

26. The grandmother sought orders that the children live with her until the mother undertook therapy so that her various problems could be addressed or were addressed.  There is no timeline attached to this proposal and no suggestion about how and when a decision might be made that the mother’s engagement in therapy was successful and that the children should be returned to her.

27. In reality, the proposal was indefinite, and really a proposal that the children live with the maternal grandmother.  While the author of the family report observed the children to have a warm relationship with the grandmother, the two older children expressed ambivalence about spending time with her.  The family report was completed in May 2018.  In September 2018 there was an application by the independent children’s lawyer based on [W] contacting her, the ICL, and saying that she did not want to spend any time with the grandmother.  It was agreed by each of the parties that the child was exhibiting very high levels of distress at the prospect of spending time with the grandmother. 

28. There was an order for a child inclusive section 11F report.  That report concluded that [W]’s distress was genuine and that forcing the child to spend time with the maternal grandmother would be counterproductive and possibly harmful to the child.  The maternal grandmother agreed that neither of the two oldest children should be compelled to spend time with her. 

1. The two younger children were apparently content to continue to spend time with her.  The interpretation of these events is not necessarily straightforward.  It is clear, in my view, that the mother did not encourage any of the children to spend time with the grandmother, although she said that she had done her best at various times.  I doubt that that is accurate because in the mother’s evidence she was clear that she saw no benefit to the children in spending time with the grandmother.  By implication, it was only because it was ordered by the court that she went along with it.

2. I am satisfied that the two oldest children have been exposed to the conflict between the mother and the maternal grandmother and, through their loyalty to their mother, have aligned with her.  That does not appear to be the case at this stage with the two younger children. 

3. In line with the recommendation of the section 11F report, I accept that forcing the two older children to spend time with the grandmother at this stage is likely to be counterproductive and possibly harmful.  It appears to me that pressure needs to be taken off the relationship between the two older children and the grandmother. 

4. It may be that, once these proceedings are complete, the mother will feel more secure and be ready to encourage a relationship or at least not impede a relationship between the children and the grandmother.  I am satisfied that it is in the best interests of the children that they have such a relationship. 

5. In my view, it would not be in the best interests of the children to make an order that they live with the maternal grandmother.  I consider that the probable result of such an order would be severe distress by the two older children, although I consider that the two younger children would probably adapt to the arrangement.  However, there was also uncontradicted evidence that the relationship between the four children was very strong and they constituted, to use a phrase of Dr H, a strong sibling pack. She said that the strong relationship between the four siblings was an important protective factor for them.  I accept that. 

6. It is unclear whether there is any perfect solution in this case.  I accept that there are serious deficiencies in either proposal. However, on balance, I am satisfied that an order that the children live with the maternal grandmother, or live with the maternal grandmother for an indefinite period until the mother satisfactorily completes some kind of therapeutic intervention, is just as likely or perhaps more likely to be catastrophic for the children rather than beneficial. By “catastrophic”, I mean that I consider it likely that the older children would be highly resistant to such an order and that it would very likely result in a rapture of the relationship between those children and their grandmother and a deep resentment against her.

7. I consider that any split of the siblings is not to be contemplated for the reasons given by Dr H, that is, that their strong bond with each other is a protective factor which may be undermined if they live in separate households.  I consider, however, that some attempt should be made at a therapeutic intervention to encourage the mother to reassess her view about the value of the relationship between the children and the grandmother. Ideally, the grandmother would participate in that process. 

8. Turning to the legislative pathway, section 60B(1) provides that the objects of Part VII of the Family Law Act are to ensure that the best interest of the children are met in various ways. The most relevant in this case are (b) – protecting the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and (c) – ensuring the children receive adequate and proper parenting to help them achieve their full potential. As I have indicated, in a case where the dispute is between the parent and a grandparent, subsections (b) and (c), which I have read, are most relevant.

9. Subsection 60B(2) provides that the principles underlying these objects are that, except when it would be contrary to a child’s best interests, I will summarise, (a), that the child has a right to know and be cared for by both their parents – not relevant in this case – (b), children have a right to spend time on a regular basis with both parents – again of little real relevance where a dispute is between a mother and a grandparent – (c), parents jointly share duties and responsibilities, (d), parents should agree about future parenting for their children and, (e), children have a right to enjoy their culture.  While those principles have no express relevance to a dispute between a parent and a grandparent, the general thrust of them is relevant. 

10. Section 60CA provides that, in deciding whether to make a parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. In determining what’s in the best interests of the child, the court must consider the matters in subsections 60CC(2) and (3). The primary considerations in subsection (2) are (a), the benefit to the child of having a meaningful relationship with both of the child’s parents – again not in issue here – and (b), the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, with this consideration to be given the greater weight. I am satisfied that the children have been subjected to neglect in the past. There is no recent evidence that this is a problem. I accept that the mother is currently adequately caring for the children’s physical needs.

11. The additional considerations are set out in subsection 60CC(3)(a) to (m). In relation to (a), the children’s views – the older children have expressed ambivalence about spending time with the grandmother and, certainly, in the case of [W] more recently, outright hostility.  The younger children have said they wish to spend more time with the grandmother.  She is a safe place for the younger children and they see her in that way. 

12. In relation to (b), the nature of the relationship of the children with their parents and any other persons – the family consultant observed the children to each have a warm and joyful relationship with the grandmother.  That was not consistent with expressed wishes of the two elder children, especially [W]. 

13. In relation to (c), the extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children – the mother has been primarily responsible but the grandmother has sought to be involved in decision-making about various aspects of the children’s lives, including medical treatment, and I am satisfied that it is desirable for that to continue.  No issue has been raised in relation to the maintenance of the children. 

14. In relation to (d), the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living – I do not propose to make an order separating the children from their mother or any other person. 

15. In relation to (e), the practical difficulty and expense of the children spending time with and communicating with a parent – in this case both parties live in Darwin and this has not been an issue. 

16. In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs – while it’s expressed in terms of an assessment of the children’s parents, in the circumstances of this case, it’s an assessment of the capacity of the mother and the maternal grandmother.  This is very much the nub of the case.  I have described my concerns about the mother’s insight and capacity.  However, on balance I am satisfied, for the reasons given, it is not in the children’s best interests that they be removed from their mother’s care. 

17. In relation to (g), the maturity, sex, life-style and background of the child and either of the child’s parents and any other characteristics of the child the court thinks are relevant – there have been no relevant factors raised about that. 

18. In relation to (h), the children are not Aboriginal or Torres Strait Islander children. 

19. In relation to (i), the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents – the mother, clearly, has experienced difficulties, although present evidence suggests that she adequately cares for the physical needs of the children.  I am not satisfied there is any real evidence of neglect by the mother of the children’s medical needs although there have been some concerns that she has been somewhat dilatory in addressing the problem that has been described as “tippy-toe walking” for [X] and [Z]. 

20. In relation to (j), any family violence involving the child or a member of the child’s family – the mother alleged that she was the victim of a physical assault by the maternal grandfather during an altercation.  She and the maternal grandfather gave evidence that they had discussed this and agreed to take steps to prevent disputes escalating to violence.  I accept there has not been a repeat of that episode. 

21. In relation to (m), any other fact or circumstance that the court thinks is relevant – there have been notifications made to the Northern Territory child welfare authorities who engaged with the mother a couple of years ago but there does not appear to be any evidence of ongoing concern by the child welfare authorities. 

22. Section 60CG requires the court to ensure that any order is consistent with any family violence order. As far as I am aware, no family violence order applies.

23. The presumption of equal shared parental responsibility under section 61DA does not apply in a dispute between a parent and a grandparent, nor in my view, does section 65DAA, requiring a court to consider equal time. As it turns out, that was the proposal of the family consultant but the maternal grandmother made it clear that she was not willing to accept that arrangement.

24. The parties have – to their credit – agreed that, if the children remain living with the mother, on the broad outlines of the time that the children should spend with the maternal grandmother, basically, alternate weekends.  I propose to make orders that the children spend time with the maternal grandmother on alternate weekends, from Friday, after school, to Monday, before school.  If either the Friday or the Monday is a public holiday, the time will be extended.  Neither party sought an order that the children spend block time with the maternal grandmother.  Hopefully, if at some point in the future the hostility between the parties or the suspicion and distrust, will be ameliorated to such a degree that that becomes possible. 

25. In relation to time-spending, I propose to make the order in relation to all four children but I propose to make a notation, which I consider simply reflects the law in any event, that the mother is to encourage the children, including the two elder children, to spend time with the maternal grandmother but she is not required to coerce them.  I also otherwise intend to make orders, largely, in conformity with the minute proposed by the mother with some changes. 

26. I should address another factor.  It was urged by the counsel for the maternal grandmother and the independent children’s lawyer that the orders I make should be interim orders.  It was said that the reason for that was that without the scrutiny of the court or the monitoring of the court the mother would be unlikely to engage in the therapeutic counselling that has been proposed and that, given her evident hostility to the maternal grandmother and her evidence that she saw no value in the children having a relationship with the maternal grandmother, once the court’s scrutiny moved elsewhere, so to speak, the mother would not co-operate. 

27. I acknowledge that there is a risk of that but I am satisfied that the litigation has caused intolerable levels of stress for the parties in this case, including the mother or very particularly the mother who gave evidence about it which I accept, and I have little doubt, the grandmother as well. 

28. However, it is not so much the parties who I am so concerned about. The evidence of [W]’s extreme distress resulting in September in an application by the independent children’s lawyer – levels of distress that were agreed by the parties then to be at levels that were harmful to the child - suggest to me that it is of the highest importance that this litigation be brought to an end. In my view, that is consistent with the overall policy of the Family Law Act and common sense that litigation is itself harmful and, unless there is a very good reason related to the best interests of the children involved, litigation should be brought to finality. I think in the circumstances of this case that is an extremely important factor, and I do not propose to make any orders other than final orders.

29. However, I do accept that the orders that I am about to make do require the mother to engage with some form of counselling for a considerable period, really indefinitely but, possibly, extending up to a year from now. They also require the mother to apply for a Little Friends Scholarship grant in order to help pay for the children’s extracurricular activities which are very important for these children because, I accept, they are socially isolated.  I consider that’s likely to be harmful for them.  The orders also require the parties to enrol in some parenting courses which also I consider to be extremely important. 

30. Because there are a variety of things that need to be completed by the mother and given that I have some reservations about whether she will comply with those orders, I propose to make an order that the appointment of the independent children’s lawyer is to be discharged after 12 months and that during that 12 months the independent children’s lawyer is to have liberty to apply.  I do not intend that to be tantamount to having made interim orders today permitting the re-opening of the whole thing.  That’s not impossible but that would be subject to other principles that are well understood. 

31. So the orders I make are final.  They are intended to be final and unless there is a very good reason this will remain the situation for the future.  It was not contested, that the mother should have sole parental responsibility if the children were to live with her.  So that will be the order.  As I have already indicated, I do not propose to make an order that [W] and [X] spend time with the grandmother in accordance with their wishes.  The orders are to cover all children. 

32. The maternal grandmother, supported by the ICL, has sought an order in the following terms: 

    That the mother should ensure that the child [W]’s sleeping arrangement do not result in her sleeping in close proximity to adult males and particularly on the same floor if it results in the mother being on a different floor of the home or some distance from her if they both are located on the same floor. 

    That is a mouthful, but the order reflects what appears to be a continuing concern about the risk to [X] from the maternal grandfather. 

33. The maternal grandfather was not cross-examined with a view to establishing that he had sexually abused or assaulted [W].  I am satisfied that there was a complete investigation by the Child Abuse Taskforce which did not substantiate any of the allegations or suspicions raised by the mother and/or the maternal grandmother.  [W] is now 11.  There has been no suggestion, despite her living in the same household as the maternal grandfather at least over the past couple of years and at other periods, that she is at risk from the maternal grandfather and there is no evidence of any inappropriate behaviour by him.

34. There is also evidence that, as a result of an earlier consent injunction about sleeping arrangements that the mother felt obliged to move [W] from her upstairs bedroom to a downstairs bedroom and that [W] was not particularly happy about that.  Given that I am not satisfied that there is any substance to the earlier allegations, given that I am not satisfied that there is any evidence of a continuing risk, if there ever was a risk, and given that I consider that that order would constitute quite an extreme interference in the running of a family’s household, I am not satisfied that it is necessary, and I am not satisfied that it is necessary to prevent any unacceptable risk.

35. I am not satisfied that there is any significant risk of the maternal grandfather assaulting the child [W]. I say that also in circumstances where the mother has, herself, proposed an order that she shall not permit the child [W] to be left alone with the maternal grandfather.  In circumstances where she proposes an order which, in my view, is quite a severe one and a strict one, I consider that such an order is more than adequate to deal with any risk.

36. In relation to the proposed order 10, that should the grandmother require a carer for the children she will only use a family member, I did not hear any evidence about that issue. I am reluctant to make an order in those terms, unless it was agreed, in the absence of any evidence.

37. In relation to the other orders that have been agreed, relating to various education sessions, including at SARC, which I understand stands for Sexual Assault Referral Centre, there is agreement about the children attending such a program, Ms Czislowski says, provided there is an age-appropriate program.  That seems to me to be an entirely reasonable qualification and I propose to add that qualification in relation to the SARC education and the Anglicare counselling. 

38. I would have thought there was no doubt that there would be an age-appropriate program and, that being the case, I do not think it makes very much difference whether it is there or not but just for the sake of clarity I do propose to include it in the orders.  Similarly, with the psychologist, the mother is presently seeing a Ms F and it is proposed by the mother that if she stops seeing Ms F that she see an alternate psychologist at the same clinic. That appears reasonable to me.

39. Similarly, with the proposed order 15 about the referral letter, I think that is reasonable that it should be to Ms F or an alternate psychologist at her clinic if she is not available.  And in relation to the notations, I am going to delete “on an interim basis” so that notation (c) will be:

    These orders are made to assist the parties to undertake therapy …

    and, similarly, with (d), there is the mention of the Little Friends Scholarship.  I propose to make order 2 that should the children’s time with the grandmother coincide with Christmas the time is to be suspended.

40. Time shall take place at the next available weekend.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 19 December 2018