RINGWOOD & SCARLE

[2021] FamCA 262

FAMILY COURT OF AUSTRALIA

RINGWOOD & SCARLE [2021] FamCA 262

FAMILY LAW – CHILDREN – With whom a child lives – Where the children are the subject of a dispute as to parenting orders between the maternal grandmother and mother – Where the children have resided in the grandmother’s primary carer for eight years – Where allegations of sexual abuse have been raised against the grandmother’s ex-husband – Where the grandmother has contravened court orders which facilitate the mother’s spending time with the children – Where the Court determined the children would benefit from a meaningful relationship with their mother – Where the Court determined it would be in the best interests of the children to remain in their grandmother’s primary care – Orders for the children to live with the grandmother and spend alternate weekends and half school holidays with their mother – Orders restraining the grandmother from permitting contact between the children and her ex-husband.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA

MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Ringwood

1^STRESPONDENT: Ms Scarle

2^ND RESPONDENT: Mr Arrow

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 5 of 2013

DATE DELIVERED: 30 April 2021

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 22-24 and 26 March 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Antunes Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Givney

SOLICITOR FOR THE 1^ST RESPONDENT: Maclarens Lawyers

2^ND RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Messner

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All existing Orders in relation to the children:

   ●        M born … 2008; and

   ●        H born … 2010

   ("the children") are discharged.

2. 2.1      The maternal grandmother MS RINGWOOD ("the maternal grandmother") has sole parental responsibility for the children.

   2.2the maternal grandmother advise the mother promptly of all decisions which she makes in relation to the care, welfare and development of the children including but not limited to their education, healthcare and extracurricular activities

   2.3the maternal grandmother forthwith give all consents and execute all necessary documents required to enable the mother to obtain all information which she may request from time to time from the children's teachers, treating health professionals and persons who conduct their extracurricular activities

   2.4the maternal grandmother advise the mother forthwith of any serious health condition or hospitalisation of either child.

3. The children live with the maternal grandmother.

4. The children spend time with the mother as follows:

   4.1each Saturday from 9.00 am until 5.00 pm for a period of six (6) weeks commencing on 8 May 2021;

   4.2thereafter from 9.00 am on Saturday until 5.00 pm on Sunday each alternate weekend for a period of three (3) calendar months;

   4.3thereafter:

   4.3.1from the conclusion of school on Friday until the commencement of school on Monday on each alternate weekend during school term time; and

   4.3.2for the first half of all school holidays in 2021 and each alternate year thereafter; and

   4.3.3for the second half of all school holidays in 2022 and each alternate year thereafter.

5. The mother is restrained from permitting Mr L from attending the first three (3) periods of time prescribed by Order 4.1.

6. The maternal grandmother is restrained from permitting any contact of whatever nature between the children and Mr Z.

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 Ringwood & Scarle 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: SYC 5 of 2013

Ms Ringwood

Applicant

And

Ms Scarle

1^st Respondent

And

Mr Arrow

2^nd Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern parenting arrangements in relation to the children:

   ·M born in 2008 (12); and

   ·H born in 2010 (11).

2. The parties to the litigation are the children's mother, Ms Scarle, and the maternal grandmother, Ms Ringwood.  The father of the children, Mr Arrow, was joined as a respondent but played no role in the proceedings.

3. The maternal grandmother was born in 1957 and is presently 63 years of age.  She has two other children, Ms T and Mr E, who are half-siblings to the mother.  It seems that the mother experienced a troubled childhood which involved family violence on the part of her step-father, Mr J.

4. In 2007 the maternal grandmother commenced a relationship and began to live with Mr Z.  They married in 2013 and the maternal grandmother contended that they separated in March 2015.  They are not divorced and the nature of their current relationship was a significant issue in the proceedings.

5. On 17 February 2016 counsel for the maternal grandmother informed the Federal Circuit Court that she intended to separate from Mr Z and that she was prepared to consent to an injunction which restrained her from bringing the children into any form of contact with him.  She made these proposals in the context of allegations that Mr Z sexually abused the children.  It was alleged further that Mr Z sexually abused a child known as Ms W during the 1990s.  Accordingly, it was alleged that contact with Mr Z would expose the children to an unacceptable risk of harm.

6. The mother was born in 1981 and is presently 39 years of age.  She and Mr Arrow commenced a relationship in 2006 and began to cohabit in January 2008.  They separated shortly after the birth of M in 2008, when the mother began to live with the maternal grandmother and Mr Z.

7. In January 2009 the mother and M moved into accommodation with a person known as "Mr Q", who had previously been a boarder in the home of the maternal grandmother and Mr Z.  The mother and M returned to live with Mr Arrow in February 2009 and they separated finally in July 2010.

8. In approximately November 2010 the mother, the children and the maternal grandmother began to live together.  In December 2010 Mr Z moved into the premises but he left again around Easter 2011.  The mother, the maternal grandmother and the children moved to Suburb K in approximately February 2012.  Between October 2011 and February 2012 the mother travelled away from Suburb K every second weekend, in order to pursue a new relationship, and the children remained in the care of the maternal grandmother.

9. In July 2012 the mother commenced a relationship with her current partner, Mr L, and they began to cohabit in December 2012.  Between July 2012 and December 2012 the mother travelled to Sydney every second weekend to spend time with Mr L.  He has four children from a previous relationship, who range in age from 21 to 13 years.

10. As appears below, Mr L became heavily invested in the allegations of sexual abuse of the children by Mr Z.  He elected to play a dominant role in the prosecution of these allegations and, at times, conducted himself in an aggressive manner toward medical practitioners and child protection officers.

11. In late 2012 the mother and Mr L decided to live together and rented a home.  The mother met his children for the first time on the weekend of 15 and 16 December 2012.  On 22 December 2012 the mother and Mr L arrived at the home of her sister to collect the children for a camping holiday.

12. An altercation arose after the maternal grandmother refused to allow the children to leave with the mother.  This altercation involved the mother, Mr L, the maternal grandmother and Mr Z.  The mother called police and, inter alia, the maternal grandmother informed officers that she was "drunk" and therefore should not take the children.  Police officers breathalysed the mother and she returned a zero reading.

13. Ultimately, the children left the premises with the mother and Mr L and travelled to a campsite at Suburb R.  The children had never previously met Mr L but may have spoken to him by telephone.

14. During this camping trip the children attended a communal shower block with Mr L.  He elected to shower naked in their company.  Mr L deposed that he had a conversation as follows with M during a shower on 28 January 2013:

    48.On 28 January 2013 [M] and I were in the communal showers at the campground.  At one point [M] pointed at my penis and [M] and I had a conversation to the following effect:

    M:You've got a big penis like [Grandad].

    Me:Oh come on you've never seen [Grandad 's] penis don't be silly.

    M:Yes I have, yes I have.

    Me:No you haven't.

    M:[Grandad] made [H] and I wee on each other.

    Me:Where was that?

    M:At the beach.

15. Mr L deposed also that he had the following conversation with both boys on 30 January 2012:

    I heard [M] say to [H] "yeah like [Grandad 's] penis, big one like [Grandad]".

    I said to [M] "What do you mean?"

    [M], [H] and I then had a conversation during which words were spoken to the following effect:

    [M]:           [Grandad] told us to wee and poo on each other.

    Me:You boys are joking you haven't seen [Grandad's] penis.  He never asked you to wee and poo on each other.

    M and H both said "Yes he did".

    Me:Oh no he didn't.  You boys are joking, what, were you playing silly games?

    They both said "Yes". 

    They were giggling but [M] looked concerned.

    These two dates would appear to be erroneous, as the mother deposed that she and Mr L collected the children from the maternal grandmother on 22 December 2012. The mother deposed that Mr L informed her of two conversations which took place on 28 December 2012 and 30 December 2012.

16. I will consider the evidence in relation to these allegations of sexual abuse in detail below in my Reasons.  I will also set out below the criminal history of Mr Z in the context of a need to protect the children from harm.

17. On 2 January 2013 the maternal grandmother commenced these proceedings by way of an Initiating Application filed in the Federal Circuit Court.  The mother and the maternal grandmother exchanged text messages between 4 January 2013 and 9 January 2013, yet no attempt was made to effect service of the Application.  The solicitor then acting for the maternal grandmother ("the maternal grandmother's previous solicitor") informed the Federal Circuit Court:

    We have been unable to serve documents on the mother of the children and the father because we don't know where either of them are...

18. On 5 February 2013 the Federal Circuit Court made interim orders that the children live with the maternal grandmother.  The court also issued a Recovery Order and the children were removed from the mother by police and delivered to the maternal grandmother on 15 February 2013.

19. On 15 February 2013 the mother made a notification to the (then named) Department of Community Services.  The matter was referred to a Joint Investigation Response Team ("JIRT").

20. On 19 March 2013 the Federal Circuit Court made interim orders that the children live with the maternal grandmother and spend time with the mother from 10.00 am until 4.00 pm each Saturday.  This time took place until December 2013 and required the mother to make a seven-hour round trip by train.  The mother was accompanied by Mr L on these visits.

21. On 7 May 2013 the Federal Circuit Court made interim orders which prevented Mr Z from caring solely for the children or bathing them.  The maternal grandmother gave an undertaking to New South Wales Police in relation to the children's contact with Mr Z.

22. On 16 July 2013 the Federal Circuit Court ordered that the maternal grandmother provide to the mother certain information in relation to Mr Z.  The mother wished to issue subpoena for production of documents in relation to the criminal history of Mr Z.  The maternal grandmother's previous solicitor had refused such a request from the mother's lawyer in February 2013.  Inter alia, he wrote to the mother's lawyer as follows:

    The gentleman you refer to is not my client.  I can't assist with the details requested as I do not have the information.

    I would point out the general legal principle that once someone has suffered any penalties imposed by the Court they are entitled to move freely with their lives.

23. In September 2013 the mother inspected documents produced on subpoena by Police South Australia.  She discovered inter alia that Police SA had issued a warrant for the arrest of Mr Z, for the purpose of laying charges of unlawful sexual intercourse with a child under twelve years.  These charges related to Ms W, who was aged under ten years at the time of the alleged offences.

24. On 6 September 2013 the mother and Mr L attended the home of the maternal grandmother.  She claimed that the mother broke glass in the front door of the premises and that Mr L screamed abuse at her.  The maternal grandmother applied for an Apprehended Violence Order against the mother, which she was granted on 9 October 2013.  The mother was ordered not to approach within 100 metres of the home of the maternal grandmother.

25. Mr L sent numerous abusive and threatening text messages to the maternal grandmother in 2013.  He stated inter alia in one message:

    You are going to gaol.

    In another message he wrote:

    We are getting a barrister – you don't know how much I have.

26. On 13 April 2013 Mr L texted the maternal grandmother as follows:

    [Ms Ringwood] considering your partners dubious criminal history and your obsession with psychologically twisting the boys against their mother, taking unsolicited photos of my vehicle number plate is both seriously threatening and criminal by intent.  I will serve you both with AVO's as clearly you are both mentally unstable.  I assure you and [Mr Z] there are systems already in place to deal with this situation.  Our day in court is coming brace yourself for jail.

27. The maternal grandmother alleged that, on 14 April 2013, Mr L said to her in the presence of the children:

    You're not to throw away any of the boys toys or put them in the bin.  You're emotionally abusing the boys.  I've spoken to the Police and you can be charged so watch yourself.  Just wait, I'm going to cause you and [Mr Z] pain.

28. On 13 October 2013 the mother removed a pet cat from the home of the maternal grandmother.  She was charged with breach of the Apprehended Violence Order made on 9 October 2013.

29. On 9 December 2013 the Federal Circuit Court ordered that the mother have supervised time with the children at a contact centre and that Mr L be excluded from these visits.  These arrangements continued until February 2015 and necessitated a seven-hour round trip by train for the mother.

30. In February 2015 Police SA produced further documents, which indicated that Mr Z had been charged with offences of "persistent sexual exploitation of a child".  These charges related to Ms W.

31. The maternal grandmother deposed that Mr Z moved out of her home on 4 March 2015.  As noted, she claimed that he has had no contact with the children since that time.  I will consider below the truthfulness or otherwise of this evidence.  Mr Z attended the Family Report interviews on 16 April 2015.

32. On 30 June 2015 the Federal Circuit Court ordered that the children spend two months of "supported time" with the mother at a contact centre.  Thereafter the children were to spend unsupervised time with the mother from 10.00 am until 2.00 pm each Saturday for four weeks, from 10:00 am until 4.00 pm each Saturday for a further four weeks, followed by overnight time from 10.00 am on Saturday until 10.00 am on Sunday for four weeks.  These Orders provided for changeovers at Suburb D Railway Station.

33. The maternal grandmother unilaterally refused to allow the children to spend unsupervised time with the mother.  This refusal appeared to be supported by the maternal grandmother's previous solicitor, who wrote inter alia to the mother's lawyer on 17 July 2015:

    In our view the latest orders are confusing and very hard to interpret.  We have sought the advice of the ICL, as well as our Counsel, as to interpretation.

    We envisage further discussions next week as we try to work out what the orders actually mean.

    As such the current arrangements for time with [C Contact Centre] tomorrow remain on foot.

34. The children spent no time with the mother between 19 July 2015 and late October 2015.  On numerous occasions during this period the mother travelled to Suburb D Railway Station to collect the children.  On each such occasion, she texted the maternal grandmother but was not favoured with a response.  On 31 October 2015 the maternal grandmother and the mother agreed to

    
    

    re-commence visits at a contact centre.

35. A final hearing took place in the Federal Circuit Court on 15 to 18 February 2016, 10 and 11 March 2016 and 17 March 2016.  As noted above, on 17 February 2016 counsel for the maternal grandmother informed the Federal Circuit Court that her client would consent to an injunction to restrain her from bringing the children into contact with Mr Z.  Counsel for the maternal grandmother stated that:

    Her intention is then to separate from [Mr Z]... if her application for primary care is ultimately successful.

36. The Federal Circuit Court delivered judgment on 27 June 2016 and made the following final Orders:

    ●the maternal grandmother and the mother have equal shared parental responsibility

    ●the children live with the maternal grandmother

    ●the children spend time with the mother for two weekends per school term;  on an additional weekends as nominated by the mother in the [Suburb K] area and for half of all school holidays

    ●the maternal grandmother is restrained from bringing the children into contact or communicating with [Mr Z].

37. The mother filed a Notice of Appeal against these Orders.  On 31 March 2017 the appeal was allowed and the proceedings were remitted for re-hearing to the Federal Circuit Court.

38. The children spent time with the mother in accordance with these Orders until the Term 1 school holidays in 2017.  Thereafter, they spent no time with her until February 2020.

39. In December 2019 Mr L informed the maternal grandmother that the mother was suffering from cancer and had received an unfavourable prognosis.  The maternal grandmother and the mother arranged that they would meet at the children's surfing lesson on 13 February 2020.  This meeting apparently was a happy occasion and extended to a dinner together for the maternal grandmother, the mother and the children.  They also interacted with Mr L on this occasion, when he assisted M with a musical instrument which was given to him by the mother during this visit.

40. On 15 February 2020 the maternal grandmother and the mother had a six-hour telephone conversation.  They arranged that the mother would see the children on H's birthday and take them to a concert in March 2020.  The children saw the mother on H's birthday but the maternal grandmother again unilaterally ceased all time prior to the scheduled concert in March 2020.

41. These proceedings were transferred to the Family Court of Australia on 3 May 2017.  In the course of interviews for a Family Report dated 13 December 2019, the mother indicated that she no longer wished to participate in the litigation.  As is her right, however, she reviewed her position and indicated that she wished to proceed with her application.  The proceedings then were listed for trial in December 2020.

1. In December 2020 the parties attended a mediation and agreed that the children would spend time with the mother on a gradually increasing basis.  Interim orders were made by consent, which provided for day contact which would extend quickly to overnight time.  Most unfortunately, the maternal grandmother again unilaterally terminated these arrangements after five occasions.  The proceedings were then listed for final hearing for five days commencing on 22 March 2021.

Approach To These Proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2).  Subsection 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA of the Act requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1) of the Act). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicality” are defined in ss 65DAA(3), (4) and (5) of the Act. There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:

   8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:

   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:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Sub-section (3) explains what is meant by the phrase “substantial and significant time”.

   9. Each of subss (1)(b) and (2)(d) of s 65DAA requires the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question.
   Sub-section (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.

   …

   13.Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as
   subs (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…

   (Footnotes omitted)

The evidence and witnesses

1. The applicant maternal grandmother relied on the following affidavits:

   1.Ms Ringwood (the maternal grandmother) affirmed on 15 March 2021

   2.Ms S (daughter-in-law of the maternal grandmother) affirmed on 21 September 2020

   3.Ms T (daughter of the maternal grandmother) affirmed on 12 October 2020

   4.Mr E (son of the maternal grandmother) affirmed on 4 November 2020.

   All of these witnesses were required for cross-examination.

2. The respondent mother relied on the following affidavits:

   1.        Ms Scarle (the mother) sworn on 17 March 2021

   2.        Mr L (partner of the mother) sworn on 17 March 2021

   3.        Ms F (cousin of the mother) sworn on 2 December 2020

   4.Ms U (grandmother of the mother) sworn on 1 December 2020

   5.Ms W (alleged victim of sexual abuse by Mr Z) sworn on 9 December 2013.

   Ms U was not required for cross-examination.  A transcript of the cross-examination of Ms W in the Federal Circuit Court was tendered in evidence.

3. I had the benefit of two Family Reports prepared by Ms Mandy Newton (“the Family Consultant”) and dated 13 December 2019 and 5 June 2020.  The Family Consultant gave oral evidence by way of cross-examination by counsel for the parties and the Independent Children's Lawyer ("the ICL").

The best interests of the children:  section 60CC considerations

Section 60CC(2) considerations

(2)      The primary considerations are:

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; 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.

(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Section 60CC(2A)

1. Sadly, there is no outcome to these proceedings which is free of risk to the children.  If they remain in the primary care of the maternal grandmother, her demonstrated lack of respect for court orders will expose the children to a real risk of the destruction of their relationship with the mother.  The maternal grandmother appears to hold the view that court orders are merely guidelines, which she is at liberty to disregard at her whim.  As appears below, it appears that her previous solicitor did little or nothing to deter her from this view.  Her current solicitor and counsel no doubt have advised her properly on the necessity to respect and obey orders of the court.

2. Another appreciable risk to the children in the primary care of the maternal grandmother would be their ongoing exposure to the indirect presence in their family unit of Mr Z.  There was no evidence that the maternal grandmother has brought the children into direct contact with him since the injunctive order was made with her consent by the Federal Circuit Court.  A private investigator engaged by the mother found no evidence of any contact between Mr Z and the children.

3. There was a wealth of evidence, however, that Mr Z is a constant indirect presence in the lives of the boys.  The maternal grandmother conceded the following:

   ●she uses the surname Z for all purposes other than banking and this litigation

   ●the name of Mr Z "probably" appears on her Medicare card

   ●she enrolled the children at school using the name "Ms Z"

   ●in her view the children regard her as "Ms Z"

   ●the name of Mr Z was included on the lease for her accommodation

   ●Mr Z lived in her home when she and the children went on holidays

   ●she and Mr Z share use of motor vehicles

   ●she met Mr Z for meals in restaurants and shopping trips

   ●she telephoned Mr Z two days before the commencement of the trial and sent a text message approximately one week earlier

   ●she is aware of his current address in City V.

4. The maternal grandmother's son and daughter-in-law gave evidence that they and their children have an ongoing relationship with Mr Z.  They both said that they regard him as presenting no risk to their children and that, in effect, the allegations of sexual abuse of the boys were fabrications by the mother and the Mr L.

5. Mr Z gave no evidence in the proceedings.  In these circumstances, I consider that it would be dangerous for me to attempt to make findings as to whether or not he subjected the children to sexual abuse.  I am able to make a determination as to whether, on the balance of probabilities, he constitutes an unacceptable risk to the children.

6. Mr Z has a criminal record in South Australia which commenced with convictions in 1989.  Subpoenaed documents indicated that this criminal record is as follows:

COURT	DATE	OFFENCE	OUTCOME	RESULT
MC	29/5/89	Drive with excess blood alcohol	Convicted	Fined $400 Drivers licence disqualification 12 months
Drive without due care	Convicted	Fined $50
Disobey probationary licence condition	Convicted	Fined $100
MC	30/1/90	Urinate in a public place	Convicted	Fined $50
MC	21/9/93	Possessing Cannabis	Convicted	Fined $50
MC	15/2/94	Indecent behaviour	Convicted	Fined $300
MC	6/4/94	Larceny	Without conviction	Fined $100
MC	12/5/04	Break and enter building and commit offence	Convicted	24 days imprisonment from 19/4/04
Pass valueless cheque (2)	Convicted	Compensation $120
Unregistered vehicle Drive uninsured	Convicted	Drivers licence disqualification 14 days
Possessing Cannabis	Convicted
Producing Cannabis Possessing Cannabis	Convicted
Larceny	Convicted	24 days imprisonment from 19/4/04
False pretences (3)	Convicted

1. The conviction in 1993 for indecent behaviour arose when Mr Z exposed his genitals to a female employee at a service station.  A "Summary of Evidence" recorded that he told police officers that he was "just shit-stirring" and that he said "country girls might like it".

2. Documents produced by Queensland police demonstrated that Mr Z was convicted in January 2005 of Breach of a Bail Undertaking and stealing.  He was fined $500 for breach of the bail undertaking and $300 for the offence of stealing.

3. In cross-examination the maternal grandmother stated that Mr Z told her of the circumstances of his conviction for indecent behaviour in South Australia.  She said that he told her also that "he said to a girl that he would give her a cigarette for a blowjob".

4. Records produced by Police South Australia demonstrated that Mr Z was committed in 2015 to stand trial in the District Court on charges of "persistent sexual exploitation of a child".  The child the subject of these charges was Ms W.  These charges were disposed of when the Crown entered a nolle prosequi in November 2016.

5. An affidavit sworn by Ms W on 9 December 2013 and the transcript of her cross-examination in the trial before the Federal Circuit Court were tendered in evidence in these proceedings (Exhibit 3).  It is clear that the mother and Mr L were in communication with Ms W before she swore her affidavit and gave evidence in the earlier trial (Exhibit 15).  Mr L also communicated with police officers in South Australia prior to charges being laid against Mr Z.  Notably, Mr L adopted an aggressive and arrogant tone in his communications with a detective.

6. I am at somewhat of a loss as to the significance which I was asked to attach to the affidavit of Ms W and the transcript of her cross-examination.  I had no evidence from Mr Z and only a seven year old affidavit from Ms W, together with the transcript of her relatively brief cross-examination in the 2016 trial.  In these circumstances, I am in no position to make any findings as to whether Ms W was subject to sexual abuse by Mr Z.

7. As indicated above I consider it would be dangerous for me to attempt to make findings as to whether, on the balance of probabilities, M and/or H experienced sexual abuse by Mr Z.  I am able to determine, however, whether Mr Z constitutes an unacceptable risk to the children.

8. The boys were interviewed by officers of the Child Abuse Squad in September 2013 and neither made any complaint in relation to maltreatment by Mr Z.  No action ultimately was taken by police or child protection authorities in relation to these allegations.

9. The only evidence of complaints by the children of sexual abuse came from the mother, Mr L and a family member who has adopted their position within the extended family.  They made no complaint to JIRT officers and no action was taken after a properly conducted investigation.

10. In these circumstances, I cannot be satisfied to the requisite standard that the children suffered sexual abuse by Mr Z.  Lest there be any doubt, I have not made a finding that the children suffered no sexual abuse by Mr Z.  In my view, the evidence fell short of establishing that he did so.  That finding does not prevent a conclusion that contact with Mr Z would expose the children to an unacceptable risk of harm.

11. Records produced on subpoena by New South Wales Police (Exhibit 11) contained a number of references to the conduct of Mr L in the course of this investigation.  For example, an officer noted "Mr L was almost insistent upon M being re-interviewed with one of them present".  Another note recorded that "the mother and her partner is getting aggressive and placing pressure on the doctor to use the SAK (sexual assault kit)".

12. In the previous trial, there was evidence that Mr L took it upon himself to video-record an interrogation of M in relation to these allegations.  Notably, M referred to this incident during this interview with the Family Consultant in 2019.

13. At the least, Mr Z is an unsuitable role model for the children.  His criminal history demonstrates a lack of respect for the law and for other people.  He has committed offences of dishonesty on several occasions.  He has behaved in an offensive, degrading and obviously disrespectful manner toward a young woman or girl on two occasions.  On the balance of probabilities, I find that contact with Mr Z would expose the children to an unacceptable risk of harm.

14. The maternal grandmother holds strongly adverse views of Mr L and, perhaps to a lesser extent, the mother.  She sought an order to restrain the mother from bringing the children into any form of contact with Mr L and his son and daughters.  I was puzzled as to why the children's best interests require a complete severance of all contact with their mother's partner of eight years.  I am at a loss to comprehend what risk arises to these boys from any form of contact with the children of Mr L.

15. In my view, this aspect of the application of the maternal grandmother is instructive as to her attitude to the mother and Mr L.  She conceded that she referred to Mr L as "the devil" in circumstances where the children were most likely to have heard her do so.

16. It seems to me to be reasonable to conclude that the negative views expressed by the children in relation to the mother and Mr L largely are a product of influence by the maternal grandmother.  It may be that she is oblivious, at least to some extent, to the psychological damage which she causes to the children by this undermining of their relationship with the mother.

17. In her second report the Family Consultant opined as follows:

    M and H seem to have been exposed to severe conflict between the parties, and based on their comments when interviewed by the Family Consultant, potentially including negative comments about their mother who has perhaps not always been portrayed by Ms Ringwood in a positive light.  It is possible that M and H's exposure to this possible negative appraisal of their mother has reinforced their view that Ms Scarle is unstable and time spent with her a considerable risk.

18. On this issue the Family Consultant opined further:

    When children and young people do not feel supported by a parent or carer in their relationships with their other parent or carer, it is an inordinately difficult task for them to enjoy time spent with them because there is a sense that they do not have permission to do this.  Children and young people in such circumstances often return from "time" (if occurring) and provide accounts of such time in negative terms, or they refuse to attend time or have telephone communication, because they perceive that this is required of them as their live with parent or carer's champion.  Such behaviour is often a powerful means of self-preservation or a psychological defence mechanism, adopted to avoid further exposure to conflict between their combatant parents or carers.

19. Similarly, the mother and Mr L hold negative views of the maternal grandmother.  Mr L expressed his views stridently in the course of his oral evidence.  He stated inter alia:

    ●nothing will take away my certainty that [M] and [H] made disclosures and that they were being sexually abused

    ●I don't believe that she has allowed no contact with [Mr Z]

    ●there is no way she could not know and she has held her silence – yes absolutely I think she has covered it up

    ●her affidavit is false

    ●I have no reason to believe anything that woman says.

1. The mother has expressed negative views in relation to the maternal grandmother, to the point where the Family Consultant described her attitude as one of "intense contempt".  It is my view, however, that the mother has been treated cruelly by the maternal grandmother and to some extent her attitude could be regarded as justifiable in these circumstances.

2. I have no doubt that the children would benefit from a meaningful relationship with the mother.  The Family Consultant opined as follows in her second report:

   26.In the absence of risk, however, it seems important that the children be supported to have a relationship and spend time with their mother.  [Ms Scarle] is [the] children's most important attachment relationship and her involvement in the children's lives would potentially further support their healthy psychological development, self-concept and overall development.

3. The Family Consultant, however, then described the difficulties which the children face in enjoying a meaningful relationship with the mother.  She opined as follows:

   That said, given the conflict and dysfunction in [Ms Ringwood's] and [Ms Scarle's] relationship, this would not be entirely straight forward, because [Ms Scarle] appears to experience intense contempt for [Ms Ringwood] who appears to perceive [Ms Scarle] as entirely incapable of providing adequate care to [M] and [H].  Further, if [M] and [H] do not feel supported by [Ms Ringwood] in their relationship with their mother, it would make spending time with [Ms Scarle] and enjoying a positive relationship with her extremely difficult, and likely cause them considerable stress and possible psychological injury.

4. There was no evidence in relation to the children's relationship with their father, Mr Arrow.  The maternal grandmother gave evidence to the effect that she arranges for them to spend time with him in Queensland.  Given my general concerns in relation to her credit, however, I am not prepared to accept this evidence unconditionally.  Notably, the children told the Family Consultant in 2019 that they see their father approximately once per year.

Section 60CC(3) considerations

(3)      Additional considerations are:

(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

(b)the nature of the relationship of the child with:  (i)  each of the child’s parents; and (ii)  other persons (including any grandparent or other relative of the child)

(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:  (i)  to participate in making decisions about major long‑term issues in relation to the child; and (ii)  to spend time with the child; and (iii)  to communicate with the child

(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

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

(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

(f)the capacity of:  (i)  each of the child’s parents; and (ii)  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

(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

(h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i)  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 (ii)  the likely impact any proposed parenting order under this Part will have on that right

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(j)any family violence involving the child or a member of the child’s family

(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:  (i)  the nature of the order;  (ii)  the circumstances in which the order was made;  (iii)  any evidence admitted in proceedings for the order;  (iv)  any findings made by the court in, or in proceedings for, the order;  (v)  any other relevant matter

(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

(m)any other fact or circumstance that the court thinks is relevant.

I will refer only to those considerations set out in section 60CC(3) which are relevant to the present proceedings.

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 Family Consultant elected not to re-interview the children for the purposes of her updated report.  She had concerns as to their lengthy involvement in legal proceedings and JIRT investigations.  Additionally, COVID restrictions were in place at the time.

2. In December 2019 the Family Consultant reported upon the stated views of M as follows:

   102.When asked if he had a message for the court, [M] said "I want to live with grandma".  He said that he did not wish to spend time with [Ms Scarle], supervised or otherwise, but that he would consider receiving cards, gifts and letters from her.  He said that he does not wish to have telephone contact with [Ms Scarle] "ever" and that he has often avoided taking her calls or hung up on her when she has telephoned previously, "because of the unforgiveable stuff she's done and we're not allowed to see [Grandad]".  [M] said "He [Mr Z] is a much better person than her, so why do I have to call her and not him?"

3. In 2019 the Family Consultant reported upon the stated views of H as follows:

   115.When asked if he had a message for the court, [H] said that he wished to live with [Ms Ringwood] and spend no time with [Ms Scarle].  He reiterated his extremely strong negative feelings about his mother.  When asked what he might do if the court decided if he should spend time with his mother [H] said "I'd commit suicide".  He said that if [Ms Scarle] "wins the Court case" and that she attends upon [Ms Ringwood's] residence to collect him "she legally can't take me anyway and anyway, I'd run".

4. The Family Consultant held reservations as to whether these statements reflect the children's true feelings.  She opined as follows:

   132.Many of the children's comments indicate that [M] and [H] experience some degree of fear or anxiety in relation to spending time with [Ms Scarle].  Whether such comments are a true account of the children's feelings cannot be known.  This is because they appear to be aware of many of the particulars concerning this matter and they have become embroiled in the midst of their grandmother's and mother's conflict.

Section 60CC(3)(b) the nature of the relationship of the child with:  (i)  each of the child’s parents; and (ii)  other persons (including any grandparent or other relative of the child)

1. Rightly or wrongly, the maternal grandmother has fulfilled the role of primary carer for the children for approximately eight years.  They were aged approximately four years and three years when they were placed into her primary care in 2013.  The maternal grandmother accordingly has become a source of security for the children.

2. For a number of reasons, the boys' relationship with their mother has been fractured and interrupted for the past eight years.  I am satisfied that the maternal grandmother has failed comprehensively to support the boys' relationship with their mother.  I accept, however, that the mother suffered a debilitating period of illness, which impacted upon her ability to pursue the relationship at times.  One can only imagine the level of despair and discouragement which the mother experienced at various times due to her treatment by the maternal grandmother.  Regrettably it also appears that Mr L formed strong opinions and intervened in the situation to an inappropriate extent, which must have inflamed existing tensions.

Section 60CC(3)(c)  the extent to which each of the child’s parents has taken, or failed to take, the opportunity:  (i)  to participate in making decisions about major long‑term issues in relation to the child; and (ii)  to spend time with the child; and (iii)  to communicate with the child

1. The Orders made in the Federal Circuit Court on 27 June 2016 included a provision that the parties have equal shared parental responsibility for the children.  The maternal grandmother has ignored this order blatantly and conducted herself as if she holds sole parental responsibility.

2. Nonetheless, the mother has made efforts to become involved in

   
   

   decision-making and to obtain information in relation to major long-term issues as to the care, welfare and development of the children.  She has been thwarted in these efforts but she took the opportunity to obtain information about the children by a careful study of documents produced on subpoena.

3. There was no evidence as to the extent to which the children's father has attempted to participate in decision-making in relation to their long-term care, welfare and development.  There was no evidence as to the extent of his involvement in their lives, although M told the Family Consultant that he sees his father "sometimes, maybe once in the year".

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. The mother gave evidence that she commenced work as an insurance claims consultant in January 2021 and earns a salary of $1,500 per week.  She said that she has informed the Child Support Agency of this employment.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Obviously, a move to the primary care of the mother would constitute a very substantial change in the children's living arrangements.  Such a change would be contrary to their expressed views but, as indicated above, the Family Consultant had doubts as to whether their words accurately portray their true feelings.  The Family Consultant referred to the adverse impact upon the children of the dysfunctional relationship and high level of conflict between the mother and the maternal grandmother.

2. In her oral evidence, the Family Consultant made these observations as to the likely effect on the children of a change in primary residence:

   ●        running away is a possibility

   ●[M] would want independence – it would make perfect sense that he would run away;  that would need to be managed very carefully with a therapist

   ●if the children were excited about bedrooms in the mother's house, yes that would give some heart that they would be able to live with her

   ●it is a common dynamic that as adults they will seek out the mother and reject the primary carer

   ●absolutely it would not be an easy process for the children to transition to another carer;  yes it would be made more difficult by the extended family environment.

3. The Family Consultant commented in her oral evidence on H's statement to her that, in the event of a change in primary residence, he would run away or commit suicide.  She said inter alia:

   I did not feel there was a sense of urgency when he said he would run away and the same with his comment that he might kill himself.  These statements need to be considered in the context that they were acting as the maternal grandmother's champion.  Sometimes children just blurt these things out...

4. If the children move to the primary care of the mother and run away, they may well be exposed to a risk of physical danger when attempting to return to the maternal grandmother.  The two households are a relatively short distance apart but an unaccompanied trip must involve some degree of physical risk.

5. In reality, the children could not be supervised for 24 hours per day on seven days per week, so as to prevent them absconding from the mother and attempting to return to the maternal grandmother.  For example, they would attend school and probably would participate in extra-curricular activities.

6. The boys have close relationships with their cousins, who are the children of their aunt and uncle Mr E and Ms S.  This family has an ongoing relationship with Mr Z, whom they believe to have been falsely and maliciously accused of sexual misconduct by the mother and Mr L.

7. Accordingly, the children would be required to adjust to a move from an environment where Mr Z is a loved and trusted grandfather figure to a setting where he is strongly considered to be a manipulative paedophile.  I am unable to predict how they might cope with such a dramatic change in their circumstances.

8. The Family Consultant opined that "perhaps" there should be a period of no contact with the maternal grandmother for eight weeks, followed by a first meeting in the context of family therapy "with the goal of restoring the relationship".  She suggested that "maybe supervised time at first would be the safest route".

9. In her first report, the Family Consultant recommended that the children remain in the primary care of the maternal grandmother.  In her oral evidence, however, she said "I don't know what my recommendation would be to be honest...".  She opined that therapy "would be a very difficult process regardless of the outcome".

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. No issues arise in terms of the practical difficulty or expense of the children spending time with each of the parties.  This sub-section in fact refers specifically to "each of the children's parents" but I am of the view that the issue of time with both the mother and the maternal grandmother warrants consideration in the present circumstances.

Section 60CC(3)(f) the capacity of:  (i)  each of the child’s parents; and (ii)  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

and

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 maternal grandmother has displayed an appalling attitude to the importance of the children's right to maintain a relationship with their mother, subject to safety and protection considerations.  She has failed to comply with orders for time with the mother and excluded her from decision-making for a number of years.

2. During interviews for the updated report, the mother expressed to the Family Consultant real concerns as to the influence of the maternal grandmother's previous solicitor on her conduct.  The Family Consultant reported as follows:

   She said that she informed the Court that she intends to continue these legal proceedings during a Case Management Hearing, reportedly held in March 2020.  [Ms Scarle] asserted that on the day of this Hearing she overhead (sic) [Ms Ringwood's] legal representative "giving her a drilling down" in the "break out room".  She asserted that [Ms Ringwood's] legal representative was "very upset with her" and reportedly instructed [Ms Ringwood] "not to obey the Orders and to cut communication [with Ms Scarle], and I'm not to have contact with the children".  [Ms Scarle] perceives [Ms Ringwood's] legal representative's behaviour an abomination and inordinately deficient in child focus.  She said that [Ms Ringwood] has seemingly followed such instructions and not facilitated ‘time’ pursuant to the Orders since.  [Ms Scarle] said that she followed the advice of her legal representative and sent [Ms Ringwood] messages or emails advising her that she would be at the changeover location and she has attended changeover on three occasions since, but [Ms Ringwood] has reportedly not made the children available.

3. In my view, the evidence contained indications that the approach of the maternal grandmother's previous solicitor has been less than constructive in achieving a satisfactory outcome to these proceedings.  I have referred above to the artifice contained in his correspondence as to the commencement of unsupervised time in accordance with the Orders of the Federal Circuit Court.  I have referred above also to this solicitor's refusal to provide particulars in relation to Mr Z, on the basis that this person was "not his client".  As recorded above, this letter contained a high-handed observation to the effect that Mr Z had served the penalties imposed by the criminal justice system and, therefore, his criminal history was a matter beyond scrutiny in these proceedings.

4. It appears, however, that the maternal grandmother's previous solicitor was prepared to accept instructions from Mr Z on 25 February 2013.  On 25 February 2013 this solicitor wrote to the mother's lawyer inter alia as follows:

   Your client and her partner [Mr L] have continued their harassment of my client over the weekend and, in a very aggressive manner, persisted in their disgusting claims against my client's partner.  As you would appreciate this is a very serious matter and I am instructed that my client's partner is preparing to commence deformation (sic) action against your client and her partner...

5. It seems that both boys have had extensive and long-term involvement with a psychologist, Ms AA.  The maternal grandmother deposed as follows:

   576.The children see a counsellor regularly – [Ms AA].  The children have been seeing her fortnightly since 2017.

   577.Annexed hereto and marked “X” is a copy of a report she wrote detailing [M's] and [H's] diagnosis and history.

6. This report of Ms AA, which was dated 11 March 2021, read as follows:

   This letter was requested as part of the process of gathering documentation for legal proceedings regarding the future care of Master [H] and Master [M].

   More detailed information regarding therapeutic engagement can be found in subpoenaed files.

   As the longstanding Psychologist providing therapeutic support to both Master [M] and Master [H], as well as carer support to their primary carer [Ms Ringwood], I offer the following reflections;

   -Master [M] and Master [H] were originally referred in 2017 for support with mental health and well being which was being impacted by the difficult custody battle that had been preceding the referral.  As well as the reported ongoing impact of contact with birth mother and birth mothers partner, on both [H] and [M’s] emotional well being.

   -At the time of the referral as well as presently, both [H] and [M] remain in the full time care of their maternal grandmother [Ms Ringwood].

   -Contact between [H], [M] and their birth mother has been limited, as a result of both [H] and [M] declining opportunities to speak with, and see their mother.

   -My experience and observations of the attachment relationship between both [H] and [M], with their primary carer and grandmother [Ms Ringwood] has been positive.  It is my observation that [Ms Ringwood] has formed a secure attachment relationship with both [H] and [M].  [Ms Ringwood] shows evidence of having a well developed parenting capacity.  [Ms Ringwood] shows insight into understanding both [H] and [M's] developing needs.  [Ms Ringwood] shows evidence of working hard to ensure that both [M] and [H] have the opportunity and support they require to develop and grow into healthy, resilient young men.  [Ms Ringwood] displays great advocacy for both [H] and [M] and is an active participant in their schooling, extra curricula and support needs.

   -The relationship between [H] and [Ms Ringwood], as well as [M] and [Ms Ringwood] displays evidence of a safe and nurturing care giver relationship.  Both [H] and [M] confide in [Ms Ringwood], seek emotional comfort and support from [Ms Ringwood], and express feelings of safety, nurturance, emotional security in [Ms Ringwood's] care.

   -Both [H] and [M] have a well developed sense of community within their life structure, in the care of [Ms Ringwood].  This community consists of friendships, schooling, support workers, health professionals and a range of extra curricular activities.

   -Permission and consent was sought from both [H] and [M] prior to writing this letter.  [H] and [M] were given the opportunity to contribute.  Both [H] and [M] expressed a strong need and desire to remain in the care of their grandmother [Ms Ringwood].  Both [H] and [M] reflected on feelings of safety and love in the care of their grandmother.  Both [H] and [M] reflected on long term nature of their relationship and life with their grandmother.  Both [H] and [M] reflected on feelings of mistreatment, dislike and mistrust when reflecting on past and future experiences of time in the care of their mother.

   It is my opinion, based on the attachment relationship that exists between [Ms Ringwood] and [H] as well as [Ms Ringwood] and [M], that removing [H] and [M] from [Ms Ringwood's] primary care would have a significantly adverse impact on the emotional development and mental health of both [M] and [H] .

   (As per the original)

1. Ms AA is a treating health professional of the children and not a single expert, which means that I will have regard only to the contents of her report which fall within the confines of Rule 15.41.  I have set out the contents of this report in full, due to concerns expressed by the Family Consultant as to the impartiality of Ms AA.

2. In my view this report would suggest that Ms AA has accepted unquestioningly the account of the maternal grandmother as to the family history of the children.  The Family Consultant contemplated that input from a new therapist may be beneficial for the children, on the basis that Ms AA "may be working within themes provided by the maternal grandmother".

3. The notes of Ms AA (Exhibit 10) recorded a number of emotional difficulties experienced by H.  Regrettably, not all of her progress notes bore dates, thus these problems cannot be situated in time with any degree of accuracy.  These issues were recorded sequentially in the file as follows:

   ●he and [M] watched a scary video that they accidentally came across on the internet

   ●incident at scouts where the leader yelled at [H]

   ●[H] has been displaying behaviour which is more oppositional than his norm

   ●[H] described his class teacher as bossy and mean

   ●[H] was sent to Year 6 class for biting himself

   ●[H] acknowledged that sometimes he sees [M] becoming upset but chooses to keep pushing his buttons as revenge

   ●excited to be going down the coast to [Town BB], but feeling sad that he will have lots of reminders of [Grandad], but no [Grandad] to see

   ●H was encouraged to explore the idea of empathy and what it means to show others kindness even when we don't agree with, or under the other's reason for feeling.  This was stemming from [H's] response to [M] when [M] refused to snorkel due to a fear of sharks

   ●[H] expressed feeling shocked in response to the visit from his great-grandmother.  [H] expressed that some of his family are on his mum's team and others are on his own.  It was noted that [H] had developed an idea of "teams" to assist him process and understand who of his family leave him feeling safe

   ●[H] expressed that he is feeling upset at school a lot of the time.  [H] expressed that he is still feeling like his emotional cup is full and he finds that he reacts without thinking

   ●It has been noted that [H] tends to report some rigid ways of viewing situations and requires promoting to think in a more flexible way

   ●H expressions of "I carry too much, I just want to be normal"

   ●worry about being taken by his mum ... worry about "misbehaviour" reflecting badly on [Ms Ringwood] and resulting in his removal from [Ms Ringwood's] care

   ●[H] expressed that he has been struggling with thoughts of his mum and [Mr L] since speaking with his mum on the phone last fortnight.  [H] expressed that these thoughts leave him feeling "bad"

4. In the course of the trial the mother, the ICL and the court became aware for the first time that the children are recipients of a substantial NDIS package.  Little detail emerged but it seems that this package has a total value of approximately $200,000 (Exhibit 13).  Documents contained within this exhibit indicated that approval has been granted for both children to engage with a psychologist, an Aboriginal peer support mentor, an occupational therapist and a speech therapist.

5. The capacity of the mother as primary carer has been largely untested for the past eight years.  I have no reason to doubt that she would approach this role with the utmost determination to do her best for the children and to help them to adjust to this very significant change in their circumstances.  With the best of intentions, however, the mother would face a very formidable task.  I am concerned that the obvious antipathy of Mr L toward the maternal grandmother would probably intensify these challenges for the mother.

Section 60CC(3)(h)  if the child is an Aboriginal child or a Torres Strait Islander child:  (i)  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 (ii)  the likely impact any proposed parenting order under this Part will have on that right

1. The maternal grandmother claimed that she identifies as an Aboriginal and that she encourages the children to do likewise.  The mother alleged that she has never experienced the maternal grandmother to identify with Aboriginal culture and heritage.

2. The maternal great-grandmother of the children, Ms U, deposed as follows:

   11.I have been advised by [Ms Scarle] that the children regard themselves as being of Aboriginal heritage.  I have never held a view that I have any relationship to the First Nations people of Australia.  I have been aware of my "family tree" as well as my late husband's "family tree".  My ancestors immigrated to Australia from England.  There was never any discussion or consideration that [Mr U] or myself were in any way related to First Nations people.  None of my other children or relatives identifies with being First Nations People.  I am of the view that the children are being seriously misled by [Ms Ringwood] in advising them that they are indeed First Nations people.

3. I can take this issue no further on the available evidence.

Section 60CC(3)(k)  if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:  (i)  the nature of the order;  (ii)  the circumstances in which the order was made;  (iii)  any evidence admitted in proceedings for the order;  (iv)  any findings made by the court in, or in proceedings for, the order;  (v)  any other relevant matter

1. In my view, historical allegations of violence mutually levelled by the parties carry no significant weight in the outcome of these proceedings.

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 sad reality is that court orders cannot repair the fractured relationship between the mother and the maternal grandmother, nor heal the rifts and deep polarisations which exist in the extended family.  In my view, any solution to these deep-seated, multi-generational problems within the extended maternal family would be a formidable challenge for the most skilled of therapists.

2. The ICL and the maternal grandmother proposed an order that the parties and the children attend for family therapy.  In her oral evidence the mother said:

   I do not think family therapy for me and the maternal grandmother would be of assistance.  I would facilitate a relationship for the children but I do not want a relationship with that person.

3. In my view, an order for family therapy against the opposition of the mother would be of little or no utility.  It is trite but true to say that successful family therapy requires the willing participation of all parties.

Parental responsibility

1. In my view, the toxic relationship between the mother and the maternal grandmother means that they would be unable to share parental responsibility for the children.  Accordingly, the party with whom the children live for the majority of time should have sole parental responsibility.  That party should keep the other fully informed of all major decisions in relation to the care, welfare and development of the children.

Conclusion

1. As I observed at the commencement of these reasons, there is no outcome to these proceedings which is free of risk to the children.  In my view, it is reasonable to conclude that they have already suffered psychological damage.  They have endured the conflict between the parties; the conduct of Mr L in his strident pursuit of the allegations of sexual abuse.  They have endured the absence from their lives of their mother, at times when her health and life circumstances compromised her ability to pursue this relationship.

2. If the exercise which confronts the court were solely to achieve justice as between the mother and the maternal grandmother, there would be a clear-cut outcome.  The mother has suffered injustice at the hands of the maternal grandmother, whose conduct incurs strong censure.

3. The task of the court, however, is to make orders which are in the best interests of the children.  Orders for a change in primary residence would require the children to adapt to a very significant change in their circumstances.  In my view, it is highly likely that they would resist such a change and would probably take matters into their own hands.  They would then be exposed to physical risk and emotional distress.

4. The NDIS package which has been approved for the children indicates that they suffer from vulnerabilities which would most likely compromise their capacity to adjust to a change in primary residence.  In my assessment, there is a substantial prospect that a change in primary residence would fail even if the mother engaged professional assistance.  The Family Consultant expressed no confidence that a change in primary residence could be implemented successfully.

5. Mr L stated that he would permit the mother to deal with any issues which may arise in relation to sexual abuse, without his intervention.  Having regard to the forcefulness with which he outlined his current views, however, I am far from confident that he would honour this assurance.  In my assessment, there is a greater likelihood that he would seek to vindicate his previous actions if the children live in his household.  The inevitable result would be more psychological stress for the children.

6. For these reasons I will make orders which will result in the children's remaining in the primary care of the maternal grandmother.  I will make orders which provide that the children spend time with the mother.  I would not be prepared to make orders which would see the children spend time with the mother in accordance with the recommendations of a family therapist.  As indicated above, in any event, I will not make orders for family therapy against the opposition of the mother.

7. It seems to me that a useful introduction to time with the mother would be the regime to which the parties agreed in December 2020.  The maternal grandmother would be well advised to comply with these orders, as is her duty.  She should also bear in mind the expert evidence of the Family Consultant, to the effect that the children may well reject her in the fullness of time if she continues to deny them a relationship with their mother.

8. I will make orders which restrain the maternal grandmother from permitting any form of contact between the children and Mr Z.  She should be cognisant that sanctions are available if she fails to abide by this order.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 30 April 2021.

Associate: 

Date:  30 April 2021