Runyon and Runyon and Ors
[2019] FCCA 143
•25 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RUNYON & RUNYON & ORS | [2019] FCCA 143 |
| Catchwords: FAMILY LAW – Parenting – incapacity of Mother and Father – competing applications as to where four children should live – parental responsibility – separation of siblings – applications by Maternal Cousin and Maternal Grandmother – assessment of capacity to promote emotional and psychological needs of the children – final orders made. |
| Legislation: Children, Youth and Families Act 2005 (Vic), s.38 Federal Court of Australia Act 1976 (Cth), s.137M |
| Cases cited: Allesch v Maunz [2000] HCA 40 |
| Applicant: | MS RUNYON |
| First Respondent: | MS B RUNYON |
| Second Respondent: | MR HOOKE |
| Third Respondent: | MS A RUNYON |
| File Number: | MLC 8998 of 2016 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 15, 16 17, 18 and 19 October 2018 and 13 November 2018 |
| Date of Last Submission: | 13 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | Faram Ritchie Davies |
| The First Respondent appeared in person on 13 November 2018. |
| Counsel for the Second Respondent: | Mr McLeod |
| Solicitors for the Second Respondent: | Joe Mamone Lawyers |
| Counsel for the Third Respondent: | Mr Kanarev |
| Solicitors for the Third Respondents: | Ella Thompson Legal |
| Counsel for the Independent Children's Lawyer: | Mr Nicholson |
| Solicitors for the Independent Children's Lawyer: | Sofra Solicitors |
ORDERS
All extant parenting orders be and are hereby discharged.
The Maternal Grandmother have sole parental responsibility for the children:-
(a)W born … 2004 (“W”);
(b)X born … 2005 (“X”);
(c)Y born … 2007 (“Y”); and
(d)Z born … 2010 (“Z”);
(“the children”), PROVIDED ALWAYS THAT the Maternal Grandmother keep the Mother and the Father informed of significant long term decisions that she makes in relation to the child and actively seeks the Mother’s and the Father’s input on such issues.
For the purpose of order 2 hereof:-
(a)before any such long term decisions are made in respect of the child:-
(i)the Maternal Grandmother shall advise the Mother and the Father by email of her proposal relating to the children;
(ii)if the Mother and/or the Father wishes to comment on the Maternal Grandmother’s proposal (or if the Mother and/or the Father has any proposal they wish to make relating to the children on this issue) they shall, within seven (7) days after the date of the Maternal Grandmother’s email, advise the Maternal Grandmother by one email each (to the email address from which the Maternal Grandmother sent her communication) of their views;
(iii)upon receipt of any comment or proposal by the Mother and/or the Father, the Maternal Grandmother shall give consideration to their respective views;
(iv)after the Maternal Grandmother has considered the Mother’s and/or the Father’s comments, she shall make a decision and advise the Mother and the Father by email or SMS text message of the outcome immediately after making that decision; and
(v)if the Mother and/or the Father do not respond by email as provided in order 3(a)(ii) hereof, the Maternal Grandmother shall be entitled to presume that the Mother and/or the Father does not wish to be involved and she may decide the issue.
The children live with Maternal Grandmother and for this purpose the Maternal Cousin shall deliver X, Y and Z to the Maternal Grandmother’s residence by 12.00 noon on 26 January 2019.
The children spend time with the Mother by agreement between the Mother and the Maternal Grandmother on the following conditions:-
(a)such time not include any overnight time; and
(b)the Maternal Grandmother supervises such time.
The Father spend time with the children from 1.00pm until 5.00pm each alternate Saturday commencing 2 February 2019, with the Father to collect the children from the home of the Maternal Grandmother (or such other place nominated by the Maternal Grandmother) at the commencement of time and return the children to the home of the Maternal Grandmother (or such other place nominated by the Maternal Grandmother) at the conclusion of time.
The Maternal Cousin complete a ‘Tuning into Kids’ course and a ‘Tuning into Teens’ course (information in relation to both courses can be found at and providing evidence to the Maternal Grandmother of her completion of those courses within six months.
The Maternal Cousin spend time with the children as follows:-
(a)from 9.00am until 5.00pm on one day during the Term 1, 2 and 3 school term holidays, such day to nominated by the Maternal Grandmother in writing by 4.00pm on the last day of school term for Z, and failing such nomination to take place on the middle Sunday of the said holiday period;
(b)from 9.00am until 5.00pm on two days during the long summer holiday period, such days to nominated by the Maternal Grandmother in writing by 4.00pm on the last day of school term for Z, and failing such nomination to take place on 28 December and 20 January;
(c)such further and other time as may be agreed between the Maternal Grandmother and the Maternal Cousin from time to time.
Notwithstanding order 3 hereof, the Maternal Grandmother be permitted to enrol the children, or any of them, in any school of her choosing in 2019.
The Maternal Grandmother:
(a)keep the Mother and the Father advised at all times of the current residential address and telephone number of the children and advise the Mother and the Father of any change thereto within seven (7) days of such change;
(b)advise the Mother and the Father immediately in the event that the children or either of them suffers any serious illness or injury;
(c)authorise any medical practitioner upon which the children or either of them may attend from time to time, to communicate with the Mother and the Father in respect to the child’s medical condition and/or requirements.
(d)authorise all schools at which the children or either of them may attend, from time to time, to:
(i)provide the Mother and the Father, at the expense of the Mother or the Father respectively, copies of all school reports, school notices and school photographs in relation to the children;
(ii)communicate with the Mother and the Father, either by telephone, in writing or by personal attendance, in respect to the children’s progress at her school;
(iii)allow the Mother and the Father to attend all school function to which parents are normally invited;
subject to any school policy in relation thereto.
The Mother and the Father shall:-
(a)keep the Maternal Grandmother advised at all times of their current residential address and telephone number and advise the Maternal Grandmother of any change thereto within seven (7) days of such change;
(b)advise the Maternal Grandmother immediately in the event that the children or either of them suffers serious illness or injury;
(c)advise the Maternal Grandmother of their current email address for notification purposes pursuant to order 3 hereof;
(d)authorise any medical practitioner upon which the children or either of them may attend from time to time, to communicate with the Maternal Grandmother in respect to the child’s medical condition and/or requirements.
The Maternal Grandmother, Mother, the Father and the Maternal Cousin, their respective servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parties or any member of his/her household in the presence or hearing of the children or either of them or from permitting any other person so to do;
(b)discussing the proceedings with or in the presence or hearing of the children or either of them or permitting any other person so to do.
The Mother and the Father are at liberty to apply to vary these orders so that they may spend further time with the children, provided that:
(a)such Application is not made within twelve months of these Orders; and
(b)the Mother or the Father files, under cover of affidavit and contemporaneously with their respective Initiating Application, evidence of the following:-
(i)his/her enrolment in and completion of an accredited course in parenting effectiveness and providing a certificate of completion for same; and
(ii)a hair follicle test undertaken no more than fourteen (14) days prior to the filing of the Initiating Application.
The Mother, the Father and the Independent Children’s Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:-
(a)the Principal or delegate of the Principal of the school attended from time to time by the children or either of them;
(b)any Medical Practitioner and/or allied health professional attending upon the child, the Mother, the Father or any other child of either parent; and
(c)the Regional Director of the Department of Human Services, Region C.
The Independent Children’s Lawyer be discharged.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out the Factsheet attached and these particulars are included in these orders.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Runyon & Runyon & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8998 of 2016
| MS RUNYON |
Applicant
And
| MS B RUNYON |
First Respondent
| MR HOOKE] |
Second Respondent
| MS A RUNYON |
Third Respondent
REASONS FOR JUDGMENT
Background
These proceedings relate to where the four children of the relationship between the First Respondent Mother, Ms B Runyon (“the Mother”), and the Second Respondent Father, Mr Hooke (“the Father”), should live. Issues with the children’s care arrangements have arisen as a direct result of the incapacity of the Mother and the Father to care for the children due to their involvement with the consumption of illicit drugs (namely methamphetamines (“ice”) and marijuana), family violence and neglect issues. The Applicant Maternal Grandmother, Ms Runyon (“the Maternal Grandmother”), and the Third Respondent Maternal Cousin, Ms A Runyon (“the Maternal Cousin”), are in dispute as to where the children should primarily reside as their parents are incapable of caring for them. The Father seeks the return of the children to his care.
These proceedings relate to the four children (collectively “the children”): –
a)W born … 2004 (“W”) who is 14 years old. W lives with the Maternal Grandmother in Town E. He attends Suburb F Secondary College and was in year nine in 2018;
b)X born … 2005 (“X”) who is 13 years old. X lives with the Maternal Cousin in Town F. She attends J School Secondary College (“J School”) and was in year seven in 2018;
c)Y born … 2007 (“Y”) who is 11 years old. Y lives with the Maternal Cousin in Town F. Y attends at Town G Primary school and was in year six in 2018; and
d)Z born … 2010 (“Z”) who is nine years old. Z lives with the Maternal Cousin in Town F. Z also attends at Town G Primary School and was in year two in 2018.
These reasons are pursuant to section 140 of the Evidence Act 1995 (Cth), the standard of proof is to a balance of probabilities.
There have been many issues referred to the by the parties in these proceedings. I have not been able to include every piece of evidence I heard or on which there was evidence in these reasons. Just because I have not mentioned something in these reasons does not mean that I have not had regard to it. I have taken all of the evidence into consideration.
In these reasons, unless it is clear from the context that this is not so, a statement of fact is a finding of fact.
W lives with the Maternal Grandmother and has been living in a different home from his siblings since 2016. The younger three children live with the Maternal Cousin in a home occupied by her and the maternal great-grandmother.
The Mother is 35 years old. She has been involved in these proceedings and was previously represented by a solicitor. She did not attend or participate in the Final Hearing, save for the last day when she attended court in Town E. For the reasons that follow I am satisfied that the proceedings should be conducted on an undefended basis as against the Mother.
The Father is 39 years old and has been represented in these proceedings. He has sporadic employment as a tradesman.
The Mother and the Father commenced their relationship in 1999. At that stage the Father was in his late teens and the Mother was in her mid-teens. The Mother and the Father commenced living together in 2000. They separated in March 2016. The Mother and the Father’s relationship was characterised by family violence inflicted on the Mother by the Father, and there have been Intervention Order proceedings.
Although denied by the Father, in or around 2014 the Mother and the Father commenced using methamphetamines. This drug use has impacted detrimentally on their relationship and their capacity to care for the children. On 24 February 2016 the Department of Health and Human Services (“the department”) became involved with the family and the Mother and the Father separated a month or so later. The children remained in the care of the Mother immediately following separation. It would seem that the Mother’s capacity to care for the children following separation was impacted by her illicit drug use and lifestyle issues associated with such drug use, including associates attending at the home who were also involved in drug use. In early April 2016 the department placed the children in the care of the Maternal Grandmother.
Until separation the children lived with the Mother and the Father in their home in Town E. Following separation, the Mother obtained an Intervention Order against the Father and he did not see the children, ostensibly on the basis that he did not understand that there was an exception to the Intervention Order to allow him to see the children. Accordingly, the Father spent very limited time with the children between the date of separation and May 2017. However, the children spent regular time in the home of the Maternal Grandmother and the home of the Maternal Cousin.
In or around November 2016 the Father spent time on one occasion with X, Y and Z, supervised by family members. Since placing the children in the care of the Maternal Grandmother, the Mother did not spend time with the children on any regular basis until after proceedings were instituted. After the commencement of proceedings, the Father was to spend day time only periods with the children, such time was supervised by his partner Ms K (“Ms K”). The Mother was to spend supervised time with the children at the Berry Street Children’s Contact Service (“Berry Street”). That has occurred however the Mother did not attend on the last occasion.
The Father has re-partnered with Ms K. They were in a relationship in 2017 and separated in mid-2017, they have since reconciled. They have a child together, C, who is an infant. Ms K has two other children from a previous relationship, D and E, who are approximately seven years and three years of age respectively.
On 9 April 2016 the children commenced living with the Maternal Grandmother at the behest of the Department, although there was no protection application at that time. Almost immediately following the children coming into the Maternal Grandmother’s care, she relinquished care of the three younger children to the Maternal Cousin. There is a dispute between the Maternal Grandmother and the Maternal Cousin as to whether or not this arrangement was to be on a temporary basis or a long-term proposition. On any view, the arrangement was to last for at least a couple of months as the children were to be enrolled at school close to the Maternal Cousin’s home. While Y and Z immediately went to live at the home of the Maternal Cousin, it seems that X did not move to live with the Maternal Cousin for a couple of weeks. Nevertheless, by the middle of 2016 the situation which exists today had arisen.
The Maternal Cousin is aged 29 years. She is employed on a casual basis as a factory worker. She lives in Town F with her grandmother (being the mother of the Maternal Grandmother in these proceedings, Ms D (“the maternal great-grandmother”). The maternal great-grandmother is aged 82 years. The Maternal Cousin is the daughter of the Maternal Grandmother’s brother.
The Department has had involvement in the family which is evidenced by the Response provided to the Court pursuant to section 67Z of the Family Law Act 1975 (Cth) (“the Act”). That Response was undated but was received by the Court in late September 2016, and it records as follows:-
a)the Department did not intend to intervene in the proceedings;
b)the Department has received four prior reports and engaged in six consultations pursuant to section 38 of the Children, Youth and Families Act 2005 (Vic) in relation to the children of the proceedings as follows:-
i)between 1 May 2014 and 2 June 2014 concerns were raised in relation to the Father using cannabis and ice. The matter was closed as intake due to no specific information suggesting the children were at risk of harm;
ii)on 11 July 2014 there was a concern that the children were being exposed to verbal family violence between the Mother and the Father. The matter was closed at intake as Victoria Police had made formal referrals for both parents;
iii)between 2 June 2015 and 9 June 2015 concerns were raised in relation to the children’s exposure to a further incident of verbal and physical family violence. The Father was identified in the report as the perpetrator. The matter was closed at intake with the parents being referred to Child FIRST;
iv)between 11 June 2015 and 21 October 2018 the Department was consulted on numerous occasions after Child First had failed in attempts to engage the Mother in support services. The matter was closed at intake; and
v)protective intervention was undertaken by the Department between 24 February 2016 and 7 June 2016 as a result of concerns regarding the children’s ongoing exposure to family violence. On 7 March 2016 the police had been called to the parent’s home on two occasions. On the second occasion, the Mother was “covered in small red marks and light bruising to the limbs”. The Father returned to the home throughout the observations and it was recorded that he “became aggressive towards police and made threats to kill” the Mother in the presence of the children. W also reported that the Father had threatened to kick him “as hard as he could” if W told anyone what had happened. The Father had smashed W’s phone so he could not call the police. Upon the Department becoming involved, concerns were raised with the Mother’s capacity to care for the children as she was not compliant with Intervention Order conditions as she allowed the Father to visit the home. It was also reported that the children were sleeping in the lounge rooms as friends of the Mother’s had moved into the home and were using the bedrooms. These friends were alleged to be using and dealing in illicit substance. It was also alleged further that the children had been exposed to drug paraphernalia and illicit substance use by the Mother and her friends;
vi)on 28 April 2016 the Mother placed the children in the care of the Maternal Grandmother and Child Protection had substantiated the concerns of the Mother being a “person responsible for harm”. The Department closed the case in June 2016 with W was residing with the Maternal Grandmother and X, Y and Z living with the maternal great-grandmother;
c)in summary, the Department said that the allegations made to them were in respect of exposure to family violence, substance misuse and mental health issues of the parents, environmental neglect, and concerns that the children would be at risk if they were to return to their Mother’s care. The Department noted that the reports are historical and occurred when the children were in the care of their parents, but as the children were no living with extended family members there were no protective concerns.
In terms of the care arrangements for the children in their respective homes:-
a)W lives alone with the Maternal Grandmother. She lives in a three-bedroom home in Town E. W has his own room, save that when the other children visit he shares a room with his two younger brothers. X also has her own room when she visits the Maternal Grandmother. The Maternal Grandmother had a relationship with Mr L (“Mr L”), however there are currently no other occupants of her home. Mr L appears to have had a problem with alcohol and drug use (namely marijuana) and also appears to have had an anger management problem. It seems that W had struggled with the Maternal Grandmother’s relationship with Mr L, and at one stage required a month’s respite with his paternal grandfather in Melbourne. Nevertheless, it seems that W’s expressed views is that he would like to continue living with the Maternal Grandmother, and he would like his siblings to be living with him. W now spends regular time with the Maternal Cousin and his siblings, this circumstance having developed relatively recently;
b)the youngest three children, X, Y and Z live with the Maternal Cousin and the maternal great-grandmother. They live in a four-bedroom home in Town F that is owned by the maternal great-grandmother. W is now a regular visitor to the home.
There are numerous alliances in these proceedings which have assumed some relevance. The Father has aligned with the Maternal Cousin, as has the maternal great-grandmother. There are various other family members including the maternal great-uncle, who supports his daughter’s (the Maternal Cousin) application.
The Maternal Grandmother has the support of friends but is estranged from the maternal great-grandmother and members of the maternal family who have aligned with the Maternal Cousin. It is unclear as to the Mother’s position, however she appears to have tentatively aligned with the Maternal Grandmother, notwithstanding that their relationship has been difficult from time to time.
It would seem that at the time the children were placed out of the care of the Mother, that the maternal family came together in the time of crisis in order to assist these children through a most difficult time, it would seem that the various allegiances within the family have now shattered what may once have been a cohesive group. This has the potential to expose the children to ongoing family conflict.
At least the maternal great-grandmother and the Maternal Cousin appear to have maintained a strong focus on criticism of the Maternal Grandmother in order to enhance and progress the Maternal Cousin’s application that all of the children should live with her.
The application of the Maternal Cousin at first instance did not seek the residence of W. This will assume some significance in these proceedings. Until recently, the application of the Maternal Cousin had been that the youngest three children remain in her care and W remain in the care of the Maternal Grandmother. More recently, within the last few weeks prior to the final hearing, the Maternal Cousin has amended her application to seek residence of all four children. There was some evidence that the Maternal Cousin advised a week or two before filing her application that she intended to make a residence application for W. Regardless of how it occurred, it seems that the earliest date at which the maternal cousin applied for residence of W was early October 2018.
It is suggested by the Independent Children’s Lawyer that the application for W to live with the Maternal Cousin is tactical and not based on any deep desire to have W live with her or level of insight about the siblings needing to be together. Having regard to the specific issues in this case, I accept that there is much to suggest that this is correct.
The background as to how the children left their parents care
Although the Department placed the children in the care of the Maternal Grandmother, the two youngest children only remained in her care for a period of one night. It was agreed that the younger three children would go to stay with the Maternal Cousin and W would remain with the Maternal Grandmother, although X did not go to the Maternal Cousin’s home until some weeks later. It would seem that this circumstance arose in amicable circumstances between the Maternal Grandmother and the Maternal Cousin as a result of the circumstances the family found themselves in. There were several reasons why the decision was made to separate the children. The first reason it seems was that the Maternal Grandmother’s home was too small to accommodate all four children. Secondly, it seems that there was an agreed view between the Maternal Grandmother and the Maternal Cousin that they did not want the parents knowing where the children were due to concerns that the parents, or one of them, would try to retrieve the children. It was agreed that the children’s whereabouts, or at least the three younger children’s whereabouts, should not be known to the parents as it was not in the children’s best interest. Further, it was agreed that the younger three children should change schools as there was a concern that the parents might attend children’s school and attempt to take the children into their care. Accordingly, the Maternal Grandmother and Maternal Cousin agreed that the younger three children should go to Town G primary school.
Around August 2016 the previously cordial and amicable relationship between the Maternal Grandmother and Maternal Cousin broke down. The Maternal Grandmother was caring for the children at the Maternal Cousin’s home and had allowed the mother to come into contact with the children. This was done without the Maternal Cousin’s approval and against her wishes that the children not be brought into contact with the Mother. The maternal cousin regarded the Maternal Grandmother’s decision as an affront to what she regarded as her position that she was the person who would make decisions in relation to the children. The Maternal Cousin said to the family report writer, Ms M (“Ms M”), that “Ms Runyon went “behind our backs” and allowed the children to see their mother”.
In September 2016 the Maternal Grandmother issued an Initiating Application in this Court seeking an order that all four children live with her. That application was not served on the Maternal Cousin when clearly it should have been. Nevertheless, the issuing of that application heralded the complete breakdown of the relationship between the Maternal Grandmother and the Maternal Cousin and there was no further cooperation. The Maternal Cousin did not become engaged in the proceedings until March 2017 and sought orders with respect to the three younger children only. Implicit in that application was the apparent concession that W should remain in the care of the Maternal Grandmother. On12 October, 2018 (bearing in mind that the first part of the trial started on 15 October, 2018) that the Maternal Cousin amended her Response to include a residence application with respect to W.
Between August/September 2016 until orders were made in this Court in May 2017 the children had not been spending time together. Even during that period the Maternal Grandmother was seeking time with the three younger children however the Maternal Cousin was not seeking time with W.
The proceedings in the absence of the Mother
It was not until the final day of the hearing when the proceedings were listed in the Town E Circuit for final submissions that the Mother attended Court. The proceedings had previously been heard over five days in Melbourne. On the date that the Mother attended and I advised her of the orders sought by each of the parties.
The Mother said that she was “unable” to attend Court in Melbourne and that she was not in a position to care for the children on a full-time basis, but did feel that she was ready to spend time with them.
Pursuant to rule 13.03C of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”):-
(1) If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court directs are taken;
(c) if the absent party is an applicant--dismiss the application;
(d) if the absent party is a party who has made an interlocutory application or a cross-claim--dismiss the interlocutory application or cross-claim;
(e) proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2) If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
The High Court authority of Allesch v Maunz [2000] HCA 40 stands for the proposition that a party has the right to appear or be heard on a matter. As was pointed out by Justice Kirby at paragraphs 38 to 40:-
…Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
Further, in the decision of Justice Charlesworth in the Federal Court of Australia of Irwin v Irwin [2016] FCA 1565, her Honour said at paragraphs 38 and 39 in relation to proceeding in the absence of a party:-
It is the obligation of a party to an action in the Court to conduct the proceeding in a way that is consistent with the overarching purpose: s 37N.
The overarching purpose of s37M does not include the objective of punishing a litigant in respect of his or her conduct in a proceeding. Having said that, it must be recognised that many civil practice and procedure provisions empower the Court to make orders having the practical effect of imposing an adverse and serious consequence upon a party where the party has departed in some way from the requirements of some other civil practice and procedure provision or an order made pursuant to such a provision. The purpose for imposing the consequence is not, however, to punish the party concerned, but to promote the overarching purpose stated in s 37M of the Act.
Although Justice Charlesworth was referring to section 37M of the Federal Court of Australia Act 1976 (Cth), which outlines the overarching purpose of civil practice and procedure provisions, the principles set out are echoed in the objects of the Rules, namely rule 1.03. Therefore, Her Honour’s comments are relevant to family law proceedings in the Federal Circuit Court.
Rule 1.03 of the Rules states as follows:-
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Court:
to operate as informally as possible
to use streamlined processes
to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
avoid undue delay, expense and technicality
consider options for primary dispute resolution as early as possible.
(5) If appropriate, the Court will help to implement primary dispute resolution.
Accordingly, in assessing whether to proceed on an undefended basis I have regard to the serious nature of the consequences which I am about to impose on the Mother, whilst also considering the overarching objects set out in rule 1.03 as it relates to each of the parties’ interests. In particular, I consider a balancing exercise between the consequences imposed on the Mother and the interests of the Maternal Grandmother, the Maternal Cousin, the Father and the children in having the proceedings determined with undue delay, expense and technicality. I also note that in proceedings with respect to children is important to consider the welfare of the children and the inherent detriment to their welfare if the Court does not make a decision as to what their future living arrangements should be. That issue resonates for these children in particular as they are currently in residential arrangements which I do not regard as being in their best interests.
I am well satisfied that the Mother was aware of the proceedings at all relevant times but did not appear to defend the respective applications of the other parties.
In circumstances where a party declines to participate it is difficult to work out how children might have, or re-establish, a meaningful relationship with an absent parent. In the circumstances of this case, the Mother has some serious issues to work through with regard to her drug use and abuse that seem to have worsened since separation.
The pressing issue in this case is a decision as to where children should live. Any issues vis-à-vis the Mother spending time with the children and on what basis them, appears premature at this stage and liberty will be reserved to the Mother liberty to apply with respect to spending time with the children provided certain conditions are met. Those conditions will stipulate that the Mother can apply to vary the orders in 12 months’ time and after she has provided evidence that she has completed a parenting course and undertaken hair follicle testing which evidences absence of drug use. This approach was supported by the Maternal Grandmother, the Maternal Cousin and the Independent Children’s Lawyer.
Ultimately, these proceedings should proceed against the Mother on an undefended basis. These reasons should be read in conjunction with the reasons I delivered when the Mother appeared in Court on the last day of hearing.
Procedural History
The Maternal Grandmother filed her Initiating Application on 20 September 2016. That application sought orders on a final basis as follows:-
a)the Maternal Grandmother have sole parental responsibility for the children;
b)the children live with the Maternal Grandmother; and
c)the children spend time with the Mother and Father as ordered by this Court.
There was no particularisation of any further orders, nor any time set out for the children to spend time with the Maternal Cousin. The Initiating Application listed the Mother and the Father as the Respondents, notwithstanding that at this stage the three younger children were living with the Maternal Cousin.
The Maternal Grandmother filed a further affidavit on 23 November 2016 in relation to the inability to contact the Mother and Father and serve her application on each of them.
The proceedings came before the Court on 2 December 2016 in Town E. The Maternal Grandmother was represented by Counsel and there was no appearance by either the Mother or the Father. The proceedings were adjourned to 6 March 2017 in Town E and an order was made for the Mother and the Father to attend Court on the adjourned date. A further order was made for the Maternal Grandmother to send an SMS text message to each of the Mother and Father advising them of the proceedings, the adjourned date and a requirement for each of them to attend Court.
On 3 March 2017 the Maternal Grandmother filed an affidavit that essentially sought that the Maternal Cousin be joined as a party to the proceedings, on the basis that for “a number of months now” the younger three children had “more or less been living with” the Maternal Cousin. I regard that statement as misleading as it failed to reflect the whole truth as to the children’s living arrangements. Counsel for the Maternal Grandmother and the Independent Children’s Lawyer sought to explain this lack of candour on the part of the Maternal Grandmother in the earlier material as reflective of, and corroborative of, the joint mutual intention of the Maternal Grandmother and the Maternal Cousin that the children should be in the Maternal Cousin’s care on a temporary basis. I accept that the children’s living arrangements were in a state of flux in the initial stages, however, by the time the Maternal Grandmother issued her Initiating Application there was no doubt that the Maternal Grandmother and the Maternal Cousin were at odds regarding the living arrangements for the children. The Maternal Grandmother’s initial documents do her no credit at all.
The proceedings next came before the Court on 6 March 2017 in Town E. On that date the Maternal Grandmother was represented by Counsel, the Father attended in person and there was no appearance by the Mother. An Independent Children’s Lawyer was appointed for the children and the proceedings were adjourned to 22 May 2017 in Town E. Orders were made for the Maternal Grandmother to file an Amended Initiating Application setting out the orders sought with specificity and that she serve her documents in the proceedings on the Maternal Cousin. The Father was ordered to file responding documents by 15 April 2017. A further order was made for both the Father and the Maternal Cousin to attend on the adjourned date and that the Maternal Grandmother have liberty to seek orders on an undefended basis on the adjourned date in the event that either or both of them failed to attend.
The Maternal Cousin filed an Application in a Case on 19 May 2017. That application sought, in summary, that:-
a)she be joined as a party to the proceedings;
b)X, Y and Z live with the Maternal Cousin;
c)W live with the Maternal Grandmother;
d)the children spend time with the Father each Saturday from an agreed time dependant on the children’s sports games until 6.00pm and at further times as may be agreed, with Ms K in substantial attendance;
e)X, Y and Z spend further time with the Father each Wednesday from the conclusion of school until 8.00pm, with Ms K in substantial attendance;
f)X, Y and Z spend time with the Maternal Grandmother as agreed between the Maternal Grandmother and the Maternal Cousin;
g)an injunction against the Maternal Grandmother from bringing the children into contact with the Mother;
h)an injunction against the Father from consuming alcohol or illegal drugs or substances for 24 hours prior to or during any time spent with the children, from being affected by alcohol or allowing the children to be in contact with any other person affected by alcohol, exposing the children to family violence or denigrating any member of the children’s family;
i)the Mother and Father undertake random supervised urine drug screens as nominated, requested and approved by the Independent Children’s Lawyer; and
j)a Family Report be prepared in relation to the parties and the proceedings be listed for final hearing in the November 2017 Town E Circuit.
The proceedings came before the Court on 22 May 2017 in Town E. The Maternal Grandmother, the Maternal Cousin and the Independent Children’s Lawyer were represented, the Father appeared in person and there was no appearance by the Mother. The proceedings were listed for final hearing in the March 2018 sittings of the Town E Circuit and a Family Report was ordered to be prepared. Consent orders were reached between the parties. The substantial orders contained in the consent orders were predominately in accordance with the application in a Case filed by the Maternal Cousin, save that the Mother’s time was also reserved.
The interviews for the Family Report occurred on 9 January 2018. The Maternal Grandmother, the Mother, the Father and the Maternal Cousin all attended upon Ms M for the purposes of the preparation of the Family Report and each of them were observed with the children. The Family Report was released to the parties on 5 February 2018.
On 4 February 2018 the Mother filed a Response, seeking final orders as follows:-
a)the Maternal Grandmother have sole parental responsibility for the children and the children live with the Maternal Grandmother;
b)the children spend time with the Mother and Father as agreed with the Maternal Grandmother;
c)the Mother “may resume parental responsibility” to be equally shared with the Maternal Grandmother and with the agreement of the Independent Children’s Lawyer, provided she completes and provides a final clean drug screen, and authorises the Maternal Grandmother and the Independent Children’s Lawyer to discuss her drug remission with her treating medical professional and allied health professionals;
d)if the conditions of same are met the Independent Children’s Lawyer be discharged after 12 months;
e)the Mother undertake supervised urine drug screens as approved and nominated by the Independent Children’s Lawyer within 48 hours of a request by the Independent Children’s Lawyer; and
f)a restraint on the Mother and Father from being under the influence of methamphetamines during any time spent with the children.
On 26 February 2018 the Father filed a Response seeking final orders:-
a)the Father have sole parental responsibility for the children and the children live with the Father;
b)the children spend time with the Maternal Grandmother, the Mother and Maternal Cousin as agreed between each of them and the Father.
The Father put an alternative position within his Response, being that:-
a)the Father and the Maternal Cousin have equal shared parental responsibility for the children;
b)the Mother spend time with the children at Berry Street at times as determined by Berry Street, and upon Berry Street deeming supervision by their service is no longer necessary, her time to be as agreed between the Father and the Maternal Cousin;
c)the Father spend time with the children each weekend from after school Friday until 9.00am on Monday, each Wednesday from after school until 7.00pm, for half of all school term and long summer school holidays, special occasion time including Father’s Day, Easter and the children’s birthdays, and otherwise as agreed between the Father and the Maternal Cousin;
d)provisions for telephone time with the children;
e)the usual information sharing orders; and
f)an injunction on the Mother and the Father from consuming or being under the influence of alcohol or any legal or illegal drug or substance 24 hours prior to or during any time spent with the children.
The proceedings came before the Court on 9 March 2018 for final hearing in Town E. Each of the parties were represented by Counsel save that the Mother attended in person. This was her first and only attendance throughout the course of the proceedings, save for the last day of final hearing and her attendance upon Ms M for the preparation of the Family Report. The proceedings were unable to be heard and were adjourned to 15 October 2018 for final hearing in Melbourne. Interim consent orders were reached between the parties that provided as follows:-
a)X, Y and Z live with the Maternal Cousin;
b)W live with the Maternal Grandmother;
c)each of the children spend time with the Maternal Grandmother and the Maternal Cousin each alternate weekend from after school on Friday until 5.00pm on Sunday and for half of all school term holidays (the effect of which being that the children spend every weekend and the entirety of school term holiday periods together);
d)the children spend time with the Mother at Berry Street on a supervised basis, until low-vigilance supervision is recommended by Berry Street;
e)the Father spend time with the children each Wednesday from after school until 7.30pm and each Saturday from 10.00am to 5.00pm;
f)an injunction against each of the Mother and the Father from consuming or being under the influence of alcohol or and licit or illicit drug or substance during any time each of them spend time with the children, or from bringing them into contact with anyone under the influence of same; and
g)each of the Mother and the Father to undergo random supervised urine drug screens within 48 hours of a request from the Independent Children’s Lawyer, and if either of the parties failed to comply with same or provide a positive result their time be suspended until such time as either of them complied with the Independent Children’s Lawyer’s request and provide a clean screen.
The proposals
The Maternal Grandmother, Maternal Cousin and the Father each seek residence of the four children.
The Maternal Grandmother seeks that all four children reside with her in her home. Although she currently lives in a privately-rented three-bedroom home, she has indicated that in the event that her application is successful she will obtain a larger home with better facilities to accommodate all of the children.
The Maternal Grandmother has indicated that the Father should spend time with the children on a day-time only basis as is presently occurring, until he presents clear evidence of being drug-free, and then the Father’s time should extend to fortnightly overnight time. She does not propose that there be any specified or scheduled time between the children and the Maternal Cousin, however tempered this in her evidence and indicated that she had no objection to orders for the Maternal Cousin to spend time with the children. Further, she indicated that her position was as a result of the recommendations made in the Family Report, and I accept her evidence that she personally has no difficulty and sees some considerable merit in the children spending time with the Maternal Cousin.
The Maternal Cousin’s application is for all four children to live with her. She suggests that the children should spend some weekends with the Maternal Grandmother and some time with the Father, again predicated upon him providing clean drug screens before it can proceed to overnight time.
The Father’s secondary position in the event that he was not successful in his residence application, was for the children to live with the Maternal Cousin and spend time with the Maternal Grandmother on an overnight basis approximately once every third weekend, given all the various familial relationships that need to be accommodated.
Each of the Maternal Grandmother’s and the Maternal Cousin’s positions state that ideally all children would be in the same household. However, in the event that the Maternal Grandmother’s primary application for all four children to reside with her is not acceded to, then her secondary position is that W should remain in her care and the other children should remain in the care of the Maternal Cousin. The Maternal Cousin also says that her secondary position is that the younger three children should remain in her care and W should remain with the Maternal Grandmother. Put simply, each of them propose that in the event that they are not successful in their primary application for all four children to live with them, then the present arrangement should prevail.
The Father and the Maternal Cousin propose that the Mother should continue to see the children on a supervised basis at Berry Street for as long as Berry Street is able to accommodate such time. Thereafter, the position of the parties (being the Maternal Grandmother, the Maternal Cousin and the Father) is that the Mother should continue to see the children on a supervised basis. The Maternal Grandmother suggested that time should occur between the Mother and the children under her supervision.
The Independent Children’s Lawyer supports the application of the Maternal Grandmother. The Maternal Grandmother agreed with the proposal of the independent children’s lawyer and relied on the minute tendered by the Independent children’s lawyer as a reflection of her position in the proceedings. It is the position of the Independent Children’s Lawyer that all four children should live with the Maternal Grandmother and spend specified daytime time with the Father. Further, the Court should not order specific time between the children and the Maternal Cousin, on the basis that it is likely that time will be accommodated during the Father’s time.
What is significant about the Independent Children’s Lawyer’s proposal with respect to both time and parental responsibility is that the proposal envisages that the Maternal Cousin should have no further involvement with the children in any formal or scheduled sense. The Independent Children’s Lawyer was careful to suggest that this did not mean that the Maternal Cousin would have no time with the children. It was certainly envisaged that on an ad hoc basis at least that the Father, and probably the Maternal Grandmother, would facilitate appropriate time between the children and the Maternal Cousin (and by virtue of that the maternal great-grandmother) but that they should not be obliged to facilitate time pursuant to any Court orders.
The Independent Children’s Lawyer’s position with respect to the Mother was that she should be able to spend time with the children in the presence of the Maternal Grandmother, supervised by the maternal grandmother, and such time should not include any overnight time. The Mother indicated she agreed to that proposal.
The concept of parental responsibility in these proceedings is important. The Independent Children’s Lawyer proposed that the Maternal Grandmother should have sole parental responsibility for each of the children, with particular provisions for advising the Mother and the Father with respect to significant issues regarding the children.
The children
W
Ms M referred to W as being “well presented and neatly groomed with his fair hair cut short” and that he “appeared well spoken and polite”. Each of the parties referred to W as being a sensitive boy who enjoys activities such as magic and sewing and was not particularly interested in sports. The Maternal Grandmother gave evidence that W is doing well in school and enjoys Art. The Maternal Grandmother agreed that W was different to other boys and that he was not as mature as his siblings as he used to “look after the little ones”.
W has been engaging with counsellors at his school to assist in his issues with school attendance. He was also engaged with counsellors at Headspace but the Maternal Grandmother told Ms M that he had “found it less than helpful because his therapist changed more than once”. W has enjoyed a more positive engagement with his school counsellor and the workers at Berry Street. The Maternal Grandmother also gave evidence that despite his anxieties causing issues with school attendance, W’s attendance on these professionals has meant that the issue has somewhat abated and that last term W won an award for his school attendance.
Concerns were raised “spontaneously” by the Maternal Cousin in relation to W and alleged suicidal ideations, telling Ms M at paragraph 59 of the Family Report:-
…Ms A Runyon then spoke spontaneously about W and said that he “opens up to me” and that he had disclosed suicidal thoughts. She said she had asked him if he thought about dying and if he thought about how he might do it? She said he reported he “would never do it”. Ms A Runyon said he reported he had thought about it and that she informed Ms Runyon and that she “did nothing”. She then became critical about Ms Runyon not attending a psychologist. Ms Runyon had informed about the counselling W had undertaken.
W’s semester one school report for this year were exhibited in these proceedings as Exhibit M1. He has demonstrated an improvement in his classes across the course of the past 12 months. For each of his classes, W has between 21% and 29% approved absences and between 13% and 28% unapproved absences, amounting to approximately half his classes.
W is likely to be most affected by what has happened to his parents in light of his position as the older sibling.
W is an unusual child with an expressive and artistic personality style. At final hearing the Father and the Maternal Cousin were careful to try and avoid pejorative labels where W is concerned, however I am left with little doubt that they regard him as “unusual” but not in a good way. In the Father’s case, his reference to W as “gay”, although allegedly said in jest, reflects his true views about W and his presentation. I have no doubt that the Father loves W, however he lacks the emotional intelligence and empathy to deal with this unique boy and his charming quirky personality. The Father would struggle to deal with W’s ongoing emotional needs even if the Father’s lifestyle issues were able to be overcome.
In respect of the Maternal Cousin, the concerns as to her capacity to deal with W’s emotional needs run far deeper. The evidence suggests she has a fundamentally repulsive and hypervigilant attitude towards W, his sexuality, his flamboyance and his emotional and psychological vulnerabilities. She told Ms M:-
…he is too “touchy-feely” with X and “it’s not right”. She said he grabs her by the “cheeks” and that “you just don’t do that”. She said he is “so comfortable with his female cousins” that it made her think of “incest”.
The Maternal Cousin attempted to deny such a statement, however I accept the evidence of Ms M that when the word “incest” is placed within quotation marks it is a direct quote of the words of the Maternal Cousin. The Maternal Cousin thought that a childish visual recording made by W to music, wherein he acted “campishly” towards the camera, was sexually provocative and indicative of risk to the other children. She said to Ms M that:-
…there had been a video of W and his friend whereby W was “being seductive” and he and his friend were simulating sexual actions on pillows in the presence of X and Z [the latter was said by the Maternal Cousin not to be reordered].
I viewed this visual recording as did Ms M when giving evidence. Ms M was not concerned with the visual recording. I saw little more than a boy engaging in some fun filled recreational activities, emulating music videos and performances.
Bearing in mind the Maternal Cousin is a relatively young woman of 29 years, I am surprised and disappointed that she would jump to such an adverse conclusion in relation to something which was nothing more than childish fun.
The maternal cousin said that she was concerned that W had poked X’s breast and that this was suggestive of risk (sexually). If that occurred, and I accept that it did, it is hardly more than the behaviour of brothers and sisters everywhere and is not indicative of a risk of sexually aberrant behaviour.
The Maternal Grandmother has a more realistic and balanced view of W. She accepts him as the person he is and he is valued in her home. To the extent that he has school anxiety and attendance issues, she manages those issues appropriately by personally taking W to school and working out how far W can be pushed. She was criticised by the Maternal Cousin about W’s school attendance, however I find that she has handled that issue quite well.
X
Ms M described her as “well dressed in a pink top with black shorts and polka dots. Her fair hair was tied in a ponytail and she was well spoken.”
The Maternal Grandmother described X as a happy and “pretty easy going” girl who loves her family and her cousins.
X told Ms M that she really likes school and has “heaps of friends” and enjoys Art and recess, but sometimes she gets headaches and cannot go to school all day. She told Ms M that she had also engaged with counsellors and had done sand-play therapy, with a focus on “losses and changes”.
X’s semester one 2018 school report was tendered as an exhibit in the proceedings as exhibit T4. The report indicated that X overall had very consistent work habits throughout the first two terms. On the face of the report there also appears to have been an improvement from term one to term two in her work habits. X is “at standard” in all her subjects for semester one.
The Maternal Cousin told Ms M that X should attend J School because “she wears short skirts that are a “bit tarty” and she thought it was the best school to “send her in the right direction””. Through a statement by Z it was reported that “X says she’s [Ms A Runyon] naughty because she doesn’t let her wear slutty dresses”. There was also a suggestion through the Maternal Cousin and the paternal grandmother that X’s shorts were too small and tight, such that her “vaginal flaps” were visible.
As with W, the Maternal Cousin’s focus on issues of sexuality, the prospect of promiscuity and inappropriate behaviour ran as an undercurrent through the proceedings. There was a real sense that X was to be protected from her base desires. Implicit in this focus is a subtle denigration of X which is concerning.
Y
Y told Ms M that he enjoys PE the most at school. He said that he has a choice of either J School or Town G Secondary College for next year, but that he really wanted to go to the same school as W.
The Maternal Grandmother described Y as liking to “tell stories”, that he is sensitive and takes things to heart. Each of the parties suggested Y had a tendency to stretch the truth, and this was also acknowledged by Ms M at paragraph 98 of the Family Report:-
Y then complained that Ms Runyon had called him a name about a year ago. It is noted at this point that all of the adults had indicated that Y is prone to fabrication. He said it happened because he did not want to stay at her home and was going to a friend’s house. Y did not impress as genuine at this point of the interview.
Y’s semester one school report for this year was also exhibited in these proceedings as exhibit T5. He appears to be at standard in physical education, science, the arts and humanities, but struggles in English and mathematics. He is learning French and his teacher reported that he had been “challenged by speaking activities but he has improved steadily since the beginning of the year” and was “usually eager to engage in lessons”. Y has missed four days of school this semester. General comments made by his teacher in the report state:-
Y contributed appropriate information during the “Civic & Citizenship – Global Citizenship, Working Together” tasks, he extended his knowledge of the relationship between events and people’s actions and intentions. Y worked cooperatively with his ‘Business Expo’ partners and made valuable contributions during research tasks. He showed an understanding of the elements that make a successful business.
Y chose N as his winter interschool sport. During N games he has shown an excellent level of skill and used appropriate throwing techniques. He is an experienced player who has positively encouraged and assisted his team members. Y showed a good understanding of safety issues during water safety and SunSmart sessions. He constructively participated in the Swimming Program activities and completed the program working at Level 4. He was an enthusiastic participant during National Reconciliation Celebration Day activities. Congratulations on your third place in the Sports and your great run at the Division Sports, both great achievements! Y was an effective team member of the Student Recycling Management Team. He worked cooperatively with his team members and assisted them when needed.
It was alleged that the Maternal Grandmother had called Y a “dirty rat” and despite the Maternal Grandmother’s denials that she used those precise words, I find that she did say those words to him. Y had a sad and emotional reaction to being called names and recalled the incident with Ms M. Although not ideal, I did not discern that the Maternal Grandmother differentiated between Y and the other children and I think that the incident was little more than an error in judgement when dealing with a robust and challenging boy; as Y clearly is.
Z
Ms M reported that Z “seemed to have a speech deficit” but was otherwise “well presented and appeared well cared for.” He reported to Ms M that he used to wet the bed but that behaviour had ceased, because bad dreams had caused him to wet the bed and he said he did not want the bad dreams anymore and “it came true.”
Z is at standard in all his subjects at school. He has missed three and a half days of school this semester. The general comments in his semester one report of this year state:-
Z has participated in several other activities this semester, including our swimming program, and Physical Education. He also participates in our morning power walks and seems to enjoy these activities. Z is usually respectful at our town library visits and works well during our Values Assemblies and Investigations. Z needs to apply himself more during class, and if he did this, we would likely see a huge growth in his results. He also needs to follow our school values of being respectful, responsible and a good learner more often. Z is a very caring member of our class. I look forward to seeing how he develops throughout the rest of the year.
The Maternal Grandmother said that Z likes cars, likes to help and that he likes sports.
Overall, Z has positive feelings with respect to all of the adults in his life but he said something to Ms M which suggested the adult issues had been discussed in his presence. He said he wanted to live with his Nan Ms D, the maternal great-grandmother.
I am concerned in relation to Z that he has spent a great deal of his life at the Maternal Cousin’s home and it is likely that period is the only significant period of stability he can recollect. I was concerned about attachment issues for Z, however Ms M thought that Z’s real attachment was to the maternal great-grandmother and not the Maternal Cousin. Given the maternal great-grandmother is aged 82 (although she presents in robust good health), a primary attachment to her is not sustainable in the longer term although it does weigh into my consideration as to whether there should be ordered periods of time between the Maternal Cousin and the children, which would also result in the children spending time with the maternal great-grandmother.
The nature of the children’s relationships with the parties and their views about where they would like to live
The children have suffered a great loss in their lives in that they no longer live with their Mother or their Father. The circumstances surrounding the destruction of their primary care of their parents were rooted in a period of significant lack of parenting capacity, neglect and exposure to family violence.
W recalled his life with both of his parents when discussing issues with Ms M. He said:-
… they “argued” a lot, and his mother was “hurt” by his father a couple of times. He said the children were “kicked out of our rooms” when people came over and the children had to “sleep in the lounge”. He said his parents used drugs. He had specific memories that indicated drug use.
W also indicated that he had been exposed to family violence within the household when his Mother and Father were together. He said that his Mother:-
… protected the children from their father. He said she would get him to yell at her instead of at them. He described his mother as “really brave”. He said it was not so good that she was using drugs because the children were not fed properly and not sleeping in proper rooms.
Nevertheless, each of the children presented as having a fond and loving attachment to their parents. There was nothing to suggest that the children had forgotten their parents or held negative feelings towards them such that it would impact on the nature of their relationship. Ms M said in the Family Report that: –
a)W felt good about doing the observation with his Mother and he felt that she had protected the children as set out above;
b)of his Father W said:-
… his father “loves” the children, and that he would “stick up for us” and does a lot for us. He said it was not so good that he had used drugs but that “he does not use them now”.
c)X said:-
… it was about 12 months since she had seen her mother. She said her mother is a loving person and she misses her. She thought she might feel upset seeing her mother during an observation. She said she went to Berry Street about six months prior. She also said she believed the interview was about spending “quality time” with her brother. We proceeded after an age appropriate explanation of the process of the interview.
d)when asked about hypothetically living with her Father, X said “she would feel “ a little bit good because I could see my Nan Ms D and could go to J School”;
e)Y said “he thought his mother might be “getting better” which he thought was good about her and it was not so good that she gets “a bit shaky””;
f)of his Father, Y said:-
he thought something good about his father was that he spends time with him and “takes us places”. He said it was not so good that he “always takes us to Ms O’s place” and “she smokes drugs”. He said the last time that happened was when they last spent time with their father. He said her son P bullies him and that he is worried his father will use drugs again too.
g)Y also said “he wanted to see his mother. His wishes were primarily that “everything be normal again and real life, back to that living with Mum and Dad but not with the drugs”;
h)of his mother Z said “something good about his mother is she “gives me kisses all over my face”. He said he thought it was not so good that she “smokes” and that it “smells””;
i)regarding his Father, Z said it was good that:-
… he doesn’t drink beer any more” and takes Y to sports. He said he thought it was not so good about his father that he smokes and that he goes to “Ms O’s” and that “she is a druggo and she drinks and smokes really bad smokes”. Z said he had told his father not to go there and that he had now stopped.
The children are clearly aware of their parents’ failings and their attitude towards them is forgiving, generous and indicates a continuing desire to maintain important relationships between mother and child and father and child. The relationship between the children and their parents is important and it is in the children’s interest that those relationships are maintained.
The observations of Ms M of the children and the Father were relaxed and comfortable. Ms M described the children as interacting well with each other and their Father, and the Father was warm and affectionate with all of the children during this observation session. I am satisfied that the children observe a good, comfortable relationship with their Father which would support an ongoing relationship between them.
The children were observed with their Mother who was appropriately affectionate with them. Ms M described the children as vying for the Mother’s attention and W tried to dominate her attention. All the children appeared to have been happy to spend some time in the observation session with their Mother. I am satisfied that the Mother enjoys an ongoing relationship with the children, and they with her. The children’s relationship with their Mother is of significant value to them and they miss her presence in their lives.
In terms of the children’s relationship with the Maternal Grandmother, they reported to Ms M as follows: –
a)W described the maternal grandmother as ““caring” and “she loves everyone”. He said she “does a lot for everyone””. He was concerned when she had arguments with Mr L, that there were too many arguments between them and that their arguments upset him. This suggests that W has a protective relationship with respect to his grandmother and is concerned for her well-being, particularly surrounding issues of family violence. He also said that “he could not think of anything “not so good about” his maternal grandmother.” Further, that “if all the siblings lived together at their “Nan’s” and he said “He then said he had wanted to live with his Nan for a long time and that he “trusts” her. He said words to the effect that “life has been really good with her””. W’s expressed feelings about the Maternal Grandmother resounded with feelings of well-being and trust, and a sense that he had a place in the world where he was valued and cherished. The real downside for W at the Maternal Grandmother’s house had nothing to do with the Maternal Grandmother at all, but rather being separated from his siblings. He talked about being able to enjoy time with the Maternal Cousin if they all lived with them and he thought that:-
…. if his siblings lived with his Nan there would be no more “dramas” between “Ms A Runyon” and “Nan” and that the children would see their auntie and uncle more. W said he might enjoy spending some time with Ms A Runyon on school holidays with his siblings if they all lived with their “Nan.”
b)X did not particularly comment on her relationship with Maternal Grandmother and her wishes regarding whether she would like to live with her;
c)in relation to Y and the Maternal Grandmother, Ms M referred to the name-calling but she felt that Y did not impress as genuine at that point of the interview. He said “he thought it was good about his “Nan Ms Runyon” that she “lets us come over”. He said it was not so good “what she called me’”;
d)the only issue raised with respect to Z’s relationship with the Maternal Grandmother was that Ms M felt that adult issues had been discussed in his presence. He had no view about his living arrangements, save that he wanted to live with his maternal great-grandmother. This accords with Ms M’s perception that Z enjoyed a primary attachment with the maternal great-grandmother.
The observations of the children with the Maternal Grandmother during the family report interviews were relaxed and comfortable, and the Maternal Grandmother managed well when it appeared there might be a fight. The Maternal Grandmother was appropriately engaged and it would seem that the children’s relationship with the Maternal Grandmother is sufficiently engaged to support a primary care relationship.
In terms of the children’s relationship with the Maternal Cousin, they reported to Ms M as follows: –
a)W felt that the Maternal Cousin protected the younger children in her care and he did not like that she did not allow his younger siblings to come and visit. He said:-
… she asks him to go to her place and that he does “sometimes”. He said he goes to see his siblings. He thought it was good that she takes the children places. He said his great grandmother does all the housework.
b)When W was asked hypothetically if he was to live with his siblings at the Maternal Cousin’s household he “would like to be with his siblings but not Ms A Runyon”. Ms M indicated that his reasons for this “were vague”;
c)X told Ms M that “she likes living in Town G”, but she did not have friend’s sleepover because her maternal great-grandmother was too old;
d)Y expressed no view about living with the Maternal Cousin, however did indicate that he enjoyed the Maternal Cousin’s willingness to do things with them (like going to Sydney) but did not enjoy when she takes their devices for being naughty;
e)Z also enjoyed the fact that the Maternal Cousin took them to the snow and buys them heaps of things.
I am satisfied that the relationship between the three younger children and the Maternal Cousin could support a primary care relationship between them. I am not satisfied that the relationship between W and the Maternal Cousin is sufficient to support him in her primary care, even if that primary care was in the company of his siblings. It must be borne in mind that the Family Report was prepared prior to W commencing to spend time with the Maternal Cousin in May 2018. I accept the Maternal Cousin’s evidence that W has now shown some enthusiasm for the outings on the weekends he has spent in her care. However, I am not satisfied that the relationship between W and the Maternal Cousin has developed to the extent that W’s needs could be adequately dealt with in her primary care. W has a deep sense of trust in the Maternal Grandmother and she has a fundamental ability to understand his needs in a way which the Maternal Cousin will never be able to do. I am satisfied that the relationship between W and the Maternal Cousin has developed to the extent that it could support W spending some limited time in her care if I decide to order that should occur.
In terms of the maternal great-grandmother, I am satisfied that all of the children have a relationship with her and that she has been supportive in the care of the younger siblings. Each of the younger siblings describe the circumstances where the maternal great-grandmother performs household duties, and Z in particular seems primarily bonded to her. I am satisfied that if the younger children are removed from the Maternal Cousin’s care that they will also experience a sense of loss with respect to the ongoing daily relationship with the maternal great-grandmother.
Each of the children enjoy extended family relationships in both the Maternal Cousins and the Maternal Grandmother’s care. As I said earlier, alliances seem to have formed in this case. I am satisfied that the Father will facilitate time between the children, the Maternal Cousin, the maternal great-grandmother together, the paternal grandmother and other people who have sided with him in this dispute. I am satisfied that the Maternal Grandmother will maintain proper relationship between the children and the mother, the maternal grandfather and other significant people in their lives.
All of the children, but particularly W and X, exhibit a fundamental and deep-seated desire to be together and to live in the same household. W has experienced the separation from his siblings more keenly than the younger children, but the loss of the sibling unit has had an impact on all of the children. It is important that the children are together and in a case such as this, where the children have endured so much, it is particularly important that they be able to maintain the relationships with each other. Their relationship with each other represents a form of stability in these children’s’ lives that may be lacking in other aspects. It is a protective feature for their ongoing psychological and emotional welfare, and it fills a void in their lives where their parents once dwelled. I am not suggesting that the sibling relationships can replace the primary relationship with their parents or will entirely alleviate the losses which they have suffered. However, their sibling relationship must represent a fundamentally stable element to their lives. Accordingly, I concur with the view of the Independent Children’s Lawyer that it is not in the children’s best interests to be separated from each other. Having formed that view, it would be very difficult and damaging for W to transfer from the care of the Maternal Grandmother to the Maternal Cousin and as such the result in this case is weighted in the Maternal Grandmother’s favour as a result.
The nature of the children’s relationship with each other demands a result where the children are together and that is what shall occur.
The capacity of each of the litigants
The Maternal Grandmother
The capacity of the Maternal Grandmother has been put squarely in issue by the Maternal Cousin. The Maternal Cousin is highly critical of the Maternal Grandmother in almost every area.
Coupled with the numerous criticisms directed towards the Maternal Grandmother as a person, there was a sense of pious disapproval directed towards the Maternal Grandmother’s lifestyle choices, her parenting decisions with respect to W, her choice of companions and friends, her energy levels and her personality in general. Those criticisms emanated from the Maternal Cousin and those aligned with her, particularly the maternal great-grandmother. The attitude towards the Maternal Grandmother was almost wholly negative and even when given the opportunity to soften their views, ameliorate their attitude and identify the good in the Maternal Grandmother, the Maternal Cousin and the maternal great-grandmother were largely unable to do so save for trite and superficial comments, often with a sting in the tail.
Some of the criticisms directed towards the Maternal Grandmother were more relevant than others. Some of the criticisms, if accepted, did have the capacity to impact on the children’s welfare, and some criticisms seemed less about the children but rather were designed to malign the Maternal Grandmother generally.
With regards to the credit of the Maternal Grandmother as a witness, whilst she may have been reluctant to fully disclose issues at times, overall I am of the view that she was a truthful witness.
The Maternal Grandmother appears to be quite a soft person who is generous of spirit, particularly with regard to her attitudes towards the Father and the Mother. For instance, and notwithstanding the support of the Independent Children’s Lawyer that there should be no time between the Maternal Cousin, it was the Maternal Grandmother’s position that she was agreeable and supportive of there being formal orders for the Maternal Cousin to spend time with the children.
Whilst she is not without her deficits, demonstrated by the Facebook status she made that was tendered as exhibit T7 in these proceedings that read “All I can say is, rude pack of cunts!!!!”[referring to the Maternal Cousin], I accept that she has a capacity to get angry and frustrated and is not particularly sophisticated. However, she has done the best she can and has been a strong support for the children throughout the course of their lives.
Some of the criticisms of the Maternal Grandmother, and this may not be an exhaustive list, are as follows: –
a)the Maternal Grandmother gave evidence that she has lost her licence as a result of sacrificing her demerit points to her former Husband, who was employed as a labourer and often incurred traffic offences. I do not think this adds much to the proceedings. It was suggested that this establishes that the Maternal Grandmother is not a person who has much regard for the law and may render her incapable of abiding by court orders. The Maternal Grandmother to date has seemed compliant with Court orders and I do not regard this is a significant issue;
b)there was also a criticism levelled against the Maternal Grandmother that she and W did not spend time with the Maternal Cousin and her parents during Christmas 2016. The Maternal Grandmother said that W had requested that he spend time with her, and I accept that. I do not think this criticism of the Maternal Grandmother adds much to the Maternal Cousin’s case;
c)the Maternal Grandmother was criticised by the Maternal Cousin for W’s poor school attendance. She was also criticised for the fact that W is often a little late to school on the basis that the Maternal Grandmother concludes her employment and then drives him to school. I do not accept that that criticism is valid. W’s school refusal struck me as a complex issue. On occasions when he has been on the bus he finds it difficult to go to school and will take himself to the sickbay when he arrives. The anxiety surrounding his independent transport to school and his capacity to stay at school is alleviated if the Maternal Grandmother takes him. The Maternal Grandmother has been working with W’s school in an appropriate way. I am satisfied that the Maternal Grandmother is appropriately dealing with W’s issues with respect to school and doing it in a way which is sensitive to his needs. Notwithstanding that W is late because of the Maternal Grandmother’s work commitments, it is much better to have him at school and staying there rather than the blunt criticism levelled by the Maternal Cousin that the Maternal Grandmother should simply be able to put him on the bus or a bike. Historically, that has not helped and it is unlikely to help in the future;
d)questions were raised with respect to the challenges for the Maternal Grandmother in caring for all of the children. I accept that the house is likely to be messy and chaotic, and it is likely the Maternal Grandmother will require some respite from time to time. However, I am of the view that it will be a chaos borne out of a loving and accepting home environment. I am far more concerned that the children’s emotional needs are being met then any notions of rigid adherence to household routines and schedules. I accept that life in the Maternal Cousin’s household would likely be more ordered and sedate, centred on rules, boundaries, routines and requirements. There is a rigidity and inflexibility in the Maternal Cousin’s presentation which would ensure compliance by the children. However, the children will fail to thrive in that environment and I am concerned that when they ultimately push back against the rules, that the Maternal Cousin is ill-equipped to sensitively handle views, particularly adolescent views which do not accord with her own;
e)there was a criticism that the rental property the Maternal Grandmother lived in was too small for four children. The Maternal Grandmother gave evidence that if all four children were to be placed in her care she would apply for a larger rental property and had already made enquiries in relation to this. She also said that she would leave her current employment if necessary and she had already had a discussion with her employer about this. I accept this evidence;
f)there was a suggestion that the Maternal Grandmother brought the children into contact with the Mother. The Maternal Grandmother said that the Mother had simply turned up and that she had told the children to go outside, which I accept. All in all, in an assessment of this issue I am of the view that the Maternal Grandmother has a real appreciation of the difficulties that the Mother presents the children and her capacity to care. The Maternal Grandmother’s position vis-à-vis the Mother was that provided that the Mother was well enough to be in contact with the children she would facilitate time between the children and the Mother in her presence. Although the Maternal Grandmother has continuing affection for the Mother, the circumstances of this case would suggest that she will put the children’s needs ahead of the needs of her own daughter. This is evidenced by what had occurred prior to the Mother and the Father separating, when the Maternal Grandmother went to the home and confronted the parents about suspected drug use. The Maternal Grandmother also reported the family to the Department;
g)there have been allegations that the Maternal Grandmother has exposed the children to friends and acquaintances who may present a risk to the children. The Maternal Grandmother denied that she regularly exposes the children to people with a history of drugs or criminality, and that aside from the children she may have two girlfriends visit per week. She did have a friend called Mr L and it was also alleged that he engaged in marijuana and excessive alcohol consumption. On one occasion, Mr L was alleged to have been having seizures and he took his clothes off. The Maternal Grandmother agreed that she told the children to go into the other room, but he did not take all of his clothes off and rather just his shirt and his pants. The Maternal Grandmother denied that X saw his nakedness, which I accept. Whilst I agree that this may have had somewhat of an impact on the children, the Maternal Grandmother denied that Mr L collapsed and fainted, which I accept. The Maternal Grandmother agreed that Mr L would smoke marijuana in her home but that his “bong” was always hidden in a bag and that he would smoke in her room in the absence of the children. The Maternal Grandmother says that this relationship ended in May, but she is still friends with Mr L and he now lives in Melbourne with his mother. Of all of the criticisms directed towards the Maternal Grandmother this criticism has some merit. It is important that the Maternal Grandmother not expose the children to these sorts of events, particularly having regard to the history and W’s sensitivity to exposure to family violence. As W recorded to Ms M, this issue caused him some distress but it does not appear to have impacted significantly on his trusting relationship with the Maternal Grandmother. Although not ideal, I do not regard this event as a disqualifying feature for the Maternal Grandmother having all of the children live with her;
h)the Maternal Grandmother was also previously in a relationship with a gentleman called “Mr Q”. There were allegations that Mr Q engaged in excessive alcohol consumption and that he too presented a risk to the children. The Maternal Grandmother gave evidence that she was in a relationship with Mr Q for a period of around 12 months but that this relationship ended in 2015 on the basis of his excessive alcohol consumption. She is still friends with him. This allegation seems largely historical and occurred prior to the children moving out of their parents care;
i)Mr R is the son of the Maternal Grandmother and the brother of the Mother in these proceedings. Allegations have been made about substance misuse by Mr R, his bulling of W and that he poses a risk to the children. The Maternal Grandmother agreed that Mr R would likely have called W a “poofter” and/or a “faggot” but that he would not have done so in a “disrespectful” way. The Maternal Grandmother conceded that Mr R had an issue with alcohol and that he was in the process of being diagnosed with a bipolar disorder or borderline personality disorder. The Maternal Grandmother said that approximately three months ago Mr R had a breakdown, and subsequent to this the Maternal Grandmother had sent him to Town S, Queensland to live with his father and therefore Mr R does not pose a risk to the children. The Maternal Grandmother has minimised this incident and it does not assist her case.
j)the Maternal Cousin went as far to suggest that the Maternal Grandmother was motivated by a desire for Centrelink benefits for all four children. Such allegation is untrue, scurrilous and reflective of the contempt the Maternal Cousin holds for the Maternal Grandmother.
Much attention was paid during the cross-examination of the Father to his reasons for not providing drug screen testing, and whether or not he had used methamphetamines. The Father had at this stage provided one drug screen result from fifteen requests, the result of which recorded a positive reading for methamphetamine. The Father continuously changed his story in relation to his evidence. Whilst he maintained that he failed to undertake drug screens due to a financial inability, he at first suggested that he had provided a few results to his solicitor and was not sure why they had not been passed onto the solicitors for the other parties. He later retracted this.
The Father did however continue with his assertion that he has never “used” methamphetamines. After a convoluted passage of evidence, it became clear that the Father has in fact consumed methamphetamines before, but identified a difference in trying them occasionally and “using” them on a regular basis. The Father therefore refused to accept the assertion that he had used methamphetamines. I do not accept his reasoning. This evidence does him no credit. I therefore accept the evidence of Ms M with regard to his lack of insight and lack of responsibility for his drug use. The Father’s evidence does him no credit and I do not find him to be a truthful witness.
The Father is largely bereft of any capacity to care for the children, including in any emotional and/or psychological sense, which is just as important as his capacity to care for them in a physical sense. This was evidenced by his decision to support the case of the Maternal Cousin as to where all the children should live, in circumstances where he himself said that he thought the W should be able to choose where he wants to reside. Therefore the Father’s position to support the Maternal Cousin and her application has a hollow ring to it, as even his own sentiments express that this is not the position he takes with respect to W.
I have considered in this case why it would be that the Father would choose to support the Maternal Cousin. I am of the view that the basis for his decision was that there might be some benefit for him. I have formed the view that the Father is so totally lacking in insight that his reactions are simply visceral, self-centred and lack any serious thought as to the welfare of his children in terms of what is decided for them. He is not capable of putting the needs of the children ahead of his own.
The Father’s drug use is problematic. He had failed to attend to the production of any urine drug screens as he had been ordered to do. The Father’s residence application, whilst not conceded, was tempered with a frank concession that he realised that it would be difficult for the Court to place the children in his care at this stage. On the basis of the non-compliance of the Father to complete the drug screens as requested and the positive screen, it is impossible to conclude that the Father is drug free. Even on his own case, he admits that the last time he consumed marijuana was approximately three months ago.
The Father agreed that he called W “a little gay boy”, but minimised his behaviour by suggesting that it was just a joke. Even if I accept that it was said in a joking way, the fact that it was said to a child like W and the way it might be perceived by W could be quite different. I can accept that the Father is a basic person, but this comment shows no understanding of W’s needs.
The Father truly loves W and the other children, however there was an aspect of the Father’s presentation which tended to portray himself as a victim. For instance, during cross-examination he said the children know what he had been going through with no recognition about the fact that the children have also suffered trauma and loss as a result of his actions. There was little acknowledgement by the Father of the importance of the Mother and the Maternal Grandmother in the children’s lives.
The Father’s case was closely aligned with the case of the Maternal Cousin, which is interesting when you look at the Father’s position at various stages. For instance, he said to Ms M that “if the children were ordered to live with Ms A Runyon, he would appeal it”. However, his position at final hearing was that if he did not have primary care for the children than it should be the Maternal Cousin.
The Father also said to Ms M that he wished to move to Queensland and if an order was made for the children to live with him then he would take them with him. I have a lingering feeling that there are some hidden agendas in this case and that the Father’s position vis-à-vis the Maternal Cousin is opportunistic in so far as his ability to maintain a relationship with the children. For instance, the Father has specific orders for time, however he was able to achieve more time by agreement with the Maternal Cousin. Interestingly the issue about the Father seeing the children after school on a Friday night during the Maternal Grandmother’s time was the subject of criticism by the Maternal Cousin on the basis that Y ran to his Father. The Maternal Cousin seemed to have washed her hands of the fact that she was not responsible for that circumstance on the basis that it was within the Maternal Grandmother’s time and she was not there. She was seemingly oblivious to the fact that she had placed Y in a position where he would run to his Father because the Father was present at her behest to collect or deliver a bag from one of the children. Y then misbehaves and the Maternal Cousin blames the Maternal Grandmother for that. It is quite disingenuous for the Maternal Cousin to say that when she set up the scenario. The Father is supportive of the Maternal Cousin because at the end of the day it supports his position.
The Mother
The Mother’s capacity is impaired and she recognises that she is in no position to care for the children. Her drug use is continuing although it is hoped that she is on the path to recovery.
It is apparent from the evidence that sadly the children have suffered trauma. This trauma has been caused not only when they were living with their parents, but also following their removal by the Department due to the nature of their fractured attachments and their living arrangements which have ensued as a result of their parent’s utter disregard for their welfare.
At the time the children left the Mother’s care and the Father’s care, such a significant change in their circumstances represented a relief to them in that they finally had proper care available to them from both the Maternal Grandmother and the Maternal Cousin. Whatever criticisms might be levelled against the Maternal Cousin she has undoubtedly stepped up to care for the children, and in terms of their physical care she has done a good job.
Ultimately, the impact of the children’s experience within their parents’ households does not simply stop. The ongoing impacts of the parents’ inability to care for them has impacted on the nature of their relationships with their parents and the nature of their relationships with each other. The children have been physically separated, and for a long period they were not spending significant time with each other. This must have impacted on their emotional and psychological welfare, particularly in circumstances where they left their parents care in a state of crisis and in circumstances where their parents were in a state of crisis. With respect to W, he seems to have been the most impacted by his personal circumstances since leaving his parents care. The younger three children had each other, whereas W was deprived of the company of his siblings. I am satisfied that particularly with respect to W, but also in respect of all the children, that issues pertaining to the assessment of parties’ capacity to emotionally, physically and psychologically care for the children moving forward are of particular relevance in this case.
The other witnesses
The paternal grandmother
The paternal grandmother has filed two affidavits in these proceedings, filed 26 February 2018 and 11 October 2018. She gave evidence in the proceedings and was cross-examined.
The paternal grandmother said that “as much as I would love the children to be placed in Mr Hooke’s primary care, I support the children remaining in Ms A Runyon’s care”. The paternal grandmother said that the Maternal Cousin had been “just terrific” for the children, and that the children are “settled and happy living with her”. The paternal grandmother also suggested that W would be able to take the bus to his current school from the Maternal Cousin’s home if he were to live with her. The paternal grandmother said that she believed “it would be detrimental to the children’s well-being to be removed from the love and support of Ms A Runyon and Ms C”.
With regard to the time that the Father was to spend with the children, the paternal grandmother said that it would be in the best interests of all of the children to build up to a spend-time regime that included overnight time with their Father. She also expressed a concern that “placing the children in the primary care of Ms Runyon the children would have to go through another unnecessary upheaval”.
The paternal grandmother referred to the Father’s new partner, Ms K, who is aged 30 and that the couple have a 10 month old baby, J. She said that the Maternal Cousin has taken the children to spend time with the Father’s new baby which the children enjoy. I accept that is so and that there is a burgeoning sibling relationship with J which is important to maintain.
She also said that the Maternal Cousin has arranged for additional tutoring for the children each week, has engaged them in various extracurricular sporting activities, and has arranged counselling for Y and X. The paternal grandmother said that the Maternal Cousin has “ensured that they have been provided with all that they require, emotionally, intellectually and physically” and that the children have told her that they like living with the Maternal Cousin.
The paternal grandmother also said that from her observations, the Father was no longer using marijuana or any other illicit drugs. She repeated her assertion that although she would like to see the children in the primary care of their Father, she supports them remaining in the care of the Maternal Cousin and that placing them with the Maternal Grandmother would cause further upheaval for them in their young lives. Finally, in relation to W, the paternal grandmother says that “given W is happy living with either Ms A Runyon or Ms Runyon, I believe it best if W were re-united with his siblings in Ms A Runyon’s care”.
The paternal grandmother supported the Maternal Cousin’s suggestion that X’s skimpy shorts were inappropriate. It was the paternal grandmother who had the discussion with W about touching X on the breasts.
The paternal grandmother’s support of the Father is explicable and it is promising that she believes the Father is drug free.
While I accept that the paternal grandmother’s views are sincere, she is very much aligned with the Father and the Maternal Cousin’s care and proposal.
I place little weight on the messages of support proffered by this witness. I concur with her comments regarding the physical care of the children by the Maternal Cousin, but not otherwise.
The maternal great-grandmother
The maternal great-grandmother is the mother of the Maternal Grandmother. She is 82 years old and resides in Town F with the Maternal Cousin, who is her granddaughter. The maternal great-grandmother filed an affidavit in these proceedings on 1 March 2018. She gave evidence and was cross-examined.
The maternal great-grandmother said in her affidavit that she and the Maternal Cousin reside in a four-bedroom home with X, Y and Z. The children have resided there since April 2016.
The maternal great-grandmother said that she has “immensely enjoyed” the children residing with her, and she has “observed the children thrive in our care” in a “stable and calm environment”. She describes the children as “joyful, energetic and happy”. She describes a warm relationship with the children and says that she adores them, saying that they “often come to me for a cuddle” and that they seem settled and relaxed in her home.
The maternal great-grandmother said that she is “more than happy to have the children to live with me indefinitely”. She said that she is able to continue to assist in their care on a daily basis and to provide financial support.
The maternal great-grandmother was interviewed by Ms M. Throughout interview, she remained highly critical of the Maternal Grandmother and her lifestyle choices and ability to look after the children. Ms M noted that she “reported similar complaints to [the Maternal Cousin] and appeared to have obtained her information” from her.
The maternal great-grandmother shares an excellent relationship with the Maternal Cousin and said to Ms M that she was “terrific” in that she has “put her life on hold” to be “like a mother” to the children. She said further at paragraph 76 of the Family Report, that the Maternal Cousin “has rules” for the children and “doesn’t let them put it over her”. She again described the Maternal Cousin as a “perfect mother to them” who “spends all her money on the children”.
With regard to the relationship with the Maternal Grandmother, she said that she “did not care for six months while they lived with us” and that she “hardly visits now”. Ms M reminded her that the Maternal Grandmother did not have a licence at that time, but the maternal great-grandmother said that she could have travelled with a number of other people. She said that the Maternal Grandmother “did not seem to care about the youngest three children and that “money” was the problem”.
The maternal great-grandmother was also highly critical of the Maternal Grandmother’s parenting abilities, particularly in relation to time management and being able to get the children to school on time. At paragraph 69 of the Family Report:-
Ms D was sceptical about how Ms Runyon would get four children to school when she allegedly could not get W to school. She described X as having “come a long way” since living with her and that Y struggles and has anger problems and is difficult to calm down.
The maternal great-grandmother was also critical of the Maternal Grandmother’s lifestyle choices, saying at paragraph 71 of the Family Report:-
Ms D said she worries that if the children live with Ms Runyon they would not attend school and that she is “not capable of looking after them” and that she “likes to go out to parties and drinks alcohol”.
The maternal great-grandmother, in her statements to Ms M, has quite clearly entered into the debate about W and where he should live. This is particularly concerning as throughout this case there has been an argument put by the Maternal Cousin, and by extension the maternal great-grandmother, who do not want W residing in their home on the basis that he could be a danger to X due to “possible sexual difficulties”. Ms M reported at paragraphs 73 and 74 as follows:-
When she was asked about W moving to live with her if the children were to live together she said words to the effect that she did not have “room” for him.
She also alluded to possible sexual difficulties with W and X and said words to the effect that “at his age you have to be very careful”. She described W as “different” altogether from the other children and as having different interests. She gave the example that he enjoys dressing up in “capes” and as a “magician”.
It was quite clear during evidence that the maternal great-grandmother and the Maternal Cousin are a cohesive unit in so far as their attitude towards the Maternal Grandmother is concerned. The maternal great-grandmother also criticised the Maternal Grandmother in her evidence and suggested that she has not seen her without “a can in her hand” [of an alcoholic beverage] regardless of the time of day (an allegation that had not been made in affidavit material). I do not accept this evidence as anything but a gross exaggeration designed to malign the Maternal Grandmother. I saw little maternal affection for the Maternal Grandmother by the maternal great-grandmother. In stark contrast to the maternal great-grandmother and her critical views of the Maternal Grandmother, I observed the Maternal Grandmother sobbing in Court while her mother catalogued her list of grievances. The maternal great-grandmother was blaming of the Maternal Grandmother and would not accept any responsibility for the breakdown of their relationship. For a woman of such maturity and life experience the unyielding adherence of the maternal great-grandmother to her critical stance was surprising and does little to allay my concern that the attitude to Maternal Grandmother in the Maternal Cousin’s home is negative. Such negativity could not be lost on the children. Although there are decades between them, the Maternal Cousin and the maternal great-grandmother have similar personalities.
Ms M
Ms M attended Court and was cross-examined. She was a competent witness and her evidence was well-considered, compelling and sensitive to the children’s needs.
Ms M recommended that all four children live with the Maternal Grandmother. She did not depart from her stated recommendations during her evidence, notwithstanding robust cross-examination. The rest of Ms M’s evidence and parts of her Family Report have been incorporated in these reasons and my assessment of the best interests of these children.
The Law
I turn now to the legislative pathway which will assist me in the ultimate outcome of these proceedings. The best interests of the children are paramount in these proceedings. In determining the best interests of the children there are two primary matters or considerations and several additional matters or considerations to take into account. Some of these factors relate exclusively to parents. All are useful to make a full assessment of what is in the children’s best interest.
The primary considerations are set out in section 60CC(2) of the Act, and accordingly I must consider: –
a)the benefit to the children in having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Although these children will not live with either of the parents, I am satisfied that the orders proposed by the Independent Children’s Lawyer will ensure that they have an ongoing and meaningful relationship with each of them in a way which is appropriate.
In this case, the predominant factor is the protection of the children from harm and I give greater weight to that consideration. These children have been subject to neglect and have been exposed to drug use and family violence. The children have been harmed by their experience and they are to be protected from future harm. It is for that reason that the children must be placed out of their parents’ care and it is in the best interests of the children that they be placed in the Maternal Grandmother’s care.
The additional considerations
I have considered the children’s views and the nature of their relationships earlier. I propose to consider any additional factors set out at section 60CC(3) of the Act which are relevant in these proceedings.
Family Violence and Intervention Order proceedings
Due to excessive drug use by the Mother and the Father, there were increased conflicts between them and arguments were occurring on a daily basis. The children were exposed to these incidences of violence, expect when they were being cared for by the Maternal Grandmother.
The Mother and the Father were also physically violent towards each other. The Mother admits to physically attacking the Father, including shoving him, slapping him and throwing things at him. The Father denied that he ever used methamphetamines or that he was ever physically violent toward the Mother.
On 8 March 2016 the Mother obtained a six month Intervention Order against the Father. The Intervention Order listed the Mother and the four children as protected persons and the Father as the Respondent. The Father says that the “intervention order was used as a sword to prevent me from spending time with the children”.
It is the Independent Children’s Lawyer’s position that the evidence supports a finding that the Father has been violent towards the Mother both psychologically and physically. I agree with the position of the Independent Children’s Lawyer in that regard as the Father impressed as an untruthful witness, especially in regards to his drug use.
W also made statements to Ms M which are corroborative of his witnessing of family violence within the parents’ home.
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.
I have dealt with the children’s views previously in these reasons.
There are additional matters to record with respect to Y. An incident occurred where Y ran away from the maternal Grandmother at school changeover. The circumstances surrounding this were that the Father was at the school at the behest of the Maternal Cousin to collect bags. Y ran away from the Maternal Grandmother to his Father. The Maternal Cousin was critical of the Maternal Grandmother surrounding this incident and absolved herself of any responsibility on the basis she was not there. This criticism is disingenuous on the part of the Maternal Cousin in that it was she who had orchestrated the Father’s attendance. The Maternal Cousin suggests this demonstrates Y’s desire not to be with the Maternal Grandmother. I accept on this occasion that Y wanted to be with his Father who he loves. I do not accept that Y’s behaviour represents a view that he does not wish to be with the Maternal Grandmother in a wider sense. Of all the children, Y strikes as challenging and wilful at times. It is more likely that he was just being naughty.
The Maternal Cousin also said that the three younger children have told her they wish to live with her on various occasions. I accept that they have said that. Statements such as this are unsurprising, particularly when the children have experienced periods of instability. In this case there is palpable antipathy toward the Maternal Grandmother from the Maternal Cousin and maternal great-grandmother. Although the Maternal Cousin and maternal great-grandmother may not have communicated their views directly to the children, their attitudes could not be lost on the children.
In the circumstances I place little weight on the stated views of the younger children as communicated to the Maternal Cousin and/or those around her.
The extent to which each of the child's parents has taken, or failed to take, the opportunity to: (i) participate in making decisions about major long-term issues in relation to the child; (ii) to spend time with the child; and (iii) to communicate with the child.
I have dealt with this previously in relation to the relationship between the Maternal Cousin and W (although not strictly falling in this sub-paragraph).
It does seem curious to me that there was not more attention paid between both the Maternal Cousin and the Maternal Grandmother that the children should be spending time together. However, I have weighed those factors into my assessment of what is in the best interests of the children in this case.
The Mother has obvious deficits in terms of her adherence to being involved in the children’s lives and it would seem her drug use has overtaken her ability to be child focussed.
Save for the period of the Intervention Order which the Father mistakenly thought prohibited him from spending time with the children, I accept that the Father has been actively involved in trying to maintain his relationship with the children, including but not limited to aligning himself with the Maternal Cousin as I have discussed.
The likely effect of any changes in the children’s circumstances including the likely effect on the children of separation from their parents, the Maternal Cousin and the maternal great-grandmother in the event that the children move to live with the Maternal Grandmother
This presents as a significant issue in this case. On the proposal of the Maternal Grandmother, the younger three children, who are currently enrolled at V School’s (in relation to X) and Town G Primary School (in relation to Y and Z) would have to change schools. This would likely see X and Y attending the same school as W in 2019. It was discussed with Ms M in evidence that in the event an order was made for X to remain at V School, the Maternal Grandmother had told her that she would facilitate such attendance. Having regard to the uncertainty around fees, I do not propose to order X continue to attend V School’s. The geographical distance to V School’s is not insurmountable, but would be inconvenient. I can also see a benefit in all of the secondary school children having the same school experience which will strengthen their sibling experience.
X told Ms M that she enjoyed strong friendships and peer support at V School and I accept that is true. While change of school will represent a change for X there is no suggestion she would not form new friendship groups. She seems to be a child who makes friends easily. In this day and age it is also likely she will maintain her V School’s friends through social media.
If the Maternal Cousin were to be successful in her application W would be the only sibling who has to change schools (save that Y will be commencing high school next year) and there was a suggestion he could catch the bus. However, the real change for W would be the lack of ongoing support from the Maternal Grandmother for school attendance and a loss of his established pastoral relationship with his teachers and counsellor. This presents a risk to W’s capacity to attend school due to anxiety.
The evidence suggests that the Maternal Grandmother had an extensive involvement with the children during the period they were in their parents’ care. She also had extensive involvement with children whilst they were living with the Maternal Cousin, until she brought them into contact with their Mother.
I am satisfied that the children will cope with the necessary changes in their care and schooling, and that such changes will be to their benefit in that the sibling group will be together.
The children will experience the loss of the company of the Maternal Cousin and the maternal great-grandmother. The children value those relationships and those relationships should be maintained. The real issue is whether those relationships should be maintained in a formal way or whether they can be maintained through the Father. I have no real confidence that the relationship between the Father and the Maternal Cousin will endure well into the future. I am more confident that the Maternal Grandmother would maintain the children’s relationship with the Maternal Cousin and the great-grandmother in the medium to longer term. This has caused me to reflect on whether or not there should be formal orders. Counsel for the Maternal Grandmother argues that any form of ordered time would provide the Maternal Cousin with a window through which to continue to press for greater time and greater involvement in the children’s lives moving forward. Although I can see some force in that submission, I am of the view there should be some very limited structured time in a way which identifies the Maternal Cousin and the maternal great-grandmother as having a secondary position in the children’s lives, but nevertheless in a role which is significant and valuable as people who care for the children. Accordingly, I propose to order one day of time during each of the children’s school holiday periods. Such days can be nominated by the Maternal Grandmother as being convenient for all of the children and their various commitments. This is not a position upon which further time should be built, but rather a recognition that in the circumstances of these children’s lives there are many people who have something to offer them in terms of the wider family.
The extent to which the children’s parents have fulfilled or failed to fulfil their obligations to maintain each of them
Neither the Father nor the Mother pay child support. The Father pays the school fees for X at V School, however is currently in arrears.
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;
The only practical difficulties in this case result from the parent’s drug use and issues as to supervision. There are no geographical constraints which would impact significantly on the children’s right to maintain personal relationships with their parents and other significant people in their lives.
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 children
These will be final orders.
Children’s cases are never final in the sense that circumstances may change and arrangements may need to change as a result. Ultimately, the issue of whether or not a change of circumstances has occurred will need to be considered by any judicial officer hearing the proceedings at that time.
The issue of finality has particular resonance in this case, particularly given the position of the Mother and the Father. In each of their circumstances I find that they lack the capacity to have the ongoing primary care of the children for the reasons that I set out. I have also assessed that their capacity is impaired to the extent that the time they spend with the children should be relatively restricted. The Father should spend daytime only time with the children and any time the Mother spends with the children should be supervised by the Maternal Grandmother. I have considered whether it should be within the Maternal Grandmother’s discretion as to whether the Mother is in a position to spend unsupervised time with the children, and also whether the Father should be in a position to have extended overnight time with the children.
Ultimately, issues with respect to parental capacity, drug use and caregiving ability are of such significance and seriousness that there should be some checks and balances imposed. This is particularly important with respect to ongoing drug use as it is the drug use which seems to have had the greatest impact on the parental capacity of the parents. The impact of the drug issues has resulted in the Department being involved with removing the children from the Mother’s care and the children being voluntarily placed outside the immediate family household. On balance, there should be some structured obligation surrounding the parents and their drug use in order to progress their time, the most obvious of which is hair follicle testing or drug testing evidencing a period of abstinence. With respect to the Father, the hair follicle testing becomes particularly important as I have grave reservations about his capacity to be candid about his ongoing drug use.
Parental responsibility
Section 61DA provides that when making a parenting order I must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility.
Parental responsibility in relation to children means all duties, powers, responsibilities and authority which by law parents have in relation to children.
When two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make decisions in relation to their children jointly. The concept of shared parental responsibility carries with it the requirement to consult the other parent in relation to decisions to be made and to make a genuine effort to come to a joint decision about that issue. This means that consultation and some discussion between those who share parental responsibility is required regarding major long-term decisions.
In these proceedings the presumption that it is in the best interests of the children that their parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
(a)if the Court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family;
(b)where evidence is adduced, upon which the Court is satisfied that it would not be in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children.
I am satisfied that the Father has committed family violence within the children’s households. I am also satisfied that his probable drug use, lifestyle issues and personality generally would make it difficult for the Maternal Grandmother to consult with him in any co-operative sense.
The Mother has been largely absent from the children’s lives since they were removed from her care. This too would make it difficult for the Maternal Grandmother to consult in a co-operative sense with the Mother.
Granting sole parental responsibility to a nonparent, even a grandparent, is a serious step and carries with it a potency and a sense of disempowerment on the part of the parents which is so palpable it has the capacity to impact on the children in the sense of their place in the world and their parent’s role in their lives. Clearly it would be much easier for the Maternal Grandmother to be able to exercise the decision-making process solely to avoid disputes. Although I am satisfied that the presumption referred to in section 61DA of the Act is rebutted, I am not satisfied that it is in the best interests of the children that the parents be completely excised from decisions in relation to their care. Rather, I am satisfied that the Maternal Grandmother should be required to consult with the parents in a specific way and give them an opportunity to be involved, but ultimately final decisions shall rest with her after such consultation has occurred.
I have set out my concerns with respect to the inflexibility of the Maternal Cousin. Based on those reasons alone, any form of parental responsibility for the children cannot be allocated to her. It is now time for the Maternal Cousin to take a back seat and take up the position of a loving and significant person who cares for the children’s welfare but is not responsible for it.
I am satisfied that the parental responsibility orders as I set out are in the best interests of the children.
In all circumstances I am satisfied that the orders to be made are in the best interests of the children and I so order.
I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 25 January 2019
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