Scarle and Ringwood and Anor - [2017] FamCAFC 57

FAMILY COURT OF AUSTRALIA

SCARLE & RINGWOOD AND ANOR

[2017] FamCAFC 57

FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made orders that the children live with the grandmother and spend limited time with the mother – Where the trial judge’s reasons for so ordering were inadequate – Appeal allowed – Remitted for rehearing – Orders under appeal remade pending further order – Costs certificates granted.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Bennett & Bennett (1991) FLC 92-191
Bolitho & Cohen (2005) FLC 93-224
CDJ v VAJ (1998) 197 CLR 172
Goode & Goode (2006) FLC 93-286
House v The King (1936) 55 CLR 499
M v M (1988) 166 CLR 69
Rollings v Rollings (2009) 230 FLR 369
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
U v U (2002) 211 CLR 238
Yates & Yates (Independent Children’s Lawyer-Costs) [2012] FamCAFC 219

APPELLANT:

Ms Scarle

FIRST RESPONDENT:	Ms Ringwood
SECOND RESPONDENT:	Mr Arrow
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW

FILE NUMBER:

SYC

2013

APPEAL NUMBER:

109

2016

DATE DELIVERED:

31 March 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Thackray and Ryan JJ

HEARING DATE:

7 December 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 June 2016

LOWER COURT MNC:

[2016] FCCA 1428

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Andrew Givney

SOLICITOR FOR THE APPELLANT:

Watts McCray Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

J D Grew

SOLICITOR FOR THE FIRST RESPONDENT:

Blackman Legal

THE SECOND RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stephen Rugendyke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Insofar as it seeks leave to rely on a summary of argument longer than ten (10) pages and to file an amended notice of appeal dated 25 October 2016, the appellant mother’s application in an appeal filed 8 November 2016 be allowed.
The appeal be allowed.
The cross-appeal be allowed.
Paragraphs 1–14 inclusive and paragraph 16 of the Orders made by Judge Brewster on 27 June 2016 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for rehearing.
There be no order as to costs.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal and the cross-appeal.
The Court grants to the respondent grandmother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent grandmother in respect of the costs incurred by her in relation to the appeal and the cross-appeal.
The Court grants to the appellant mother and the respondent grandmother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother and the respondent grandmother in respect of the costs incurred by them in relation to the rehearing of the application.

PENDING FURTHER ORDER

That the maternal grandmother, Ms Ringwood (“the grandmother”) and the mother, Ms Scarle (“the mother”) have equal shared parental responsibility in relation to the children, M born in 2008 and H born in 2010.
That the children live with the grandmother.
That the children have time with the mother as follows:
a.On the second weekend and sixth weekend of each school term. Having regard to rail timetables if travel is to be by rail, this time is to be as near as possible from 10.00am Saturday to 4.00pm Sunday or Monday if a long weekend. If Easter falls outside school holidays and falls on a time weekend time is to commence on Good Friday and conclude on Easter Monday. If the mother wishes she may substitute the weekend of Mother’s Day for the second weekend. The notice period in Order (11)(b) shall apply.
b.On other weekends at times nominated by the mother provided that the time is exercised in the Town K area. She is to notify the grandmother in writing during the preceding school holidays the weekend or weekends she proposes during the next term. The weekends she nominates must not result in a situation where on average they have time more frequently than one weekend in two over the term. She may nominate the times and days of collection and return.
c.For one half of school holidays being the first half of holidays falling or commencing in even numbered years and the second half of holidays falling or commencing in odd numbered years.
That the mother may have telephone contact with the children by telephoning them each Wednesday between 6.00pm and 6.30pm. The grandmother is to ensure that the children are available to take the call. If Skype facilities are available then this may be by Skype. She may also telephone the children at the same times on each of their birthdays.
That notwithstanding the above orders the mother may opt to replace one of the weekends referred to in Order 11(a) with time on the June long weekend.
That the places of handovers are to be agreed between the parties. In default of agreement if travel is to be by rail it is to be at Central Station in Sydney or if by car at the Suburb P railway station or, if time is to be in Town K, at the Town K railway station.
That half of school holidays is to be calculated by dividing the total number of days the children do not attend school by two. If this is an uneven number of days the mother is to have the extra day in holidays falling or commencing in even numbered years and not in other holidays.
That where time is in the first half of school holidays it shall, subject to railway timetables if travel is to be by rail, commence as near as possible to 10.00am on the day after school breaks up and conclude as near as possible to 4.00pm on the last day. If it is in the second half of the holidays it will conclude one clear day before the children return to school. This is not intended to reduce the mother’s time with the children.
That the grandmother is to keep the mother informed of the names of any health professionals involved with the children and to authorise those people to provide any information to the mother that she may request. Nothing in this order purports to require those people to cooperate in this respect.
That each party shall advise the other promptly of any significant medical issue affecting the children arising whilst the children are in that party’s care.
That the grandmother is to authorise any school that the children attends to provide the mother with copies of school reports and school photographs. Nothing in this order purports to require the school to cooperate in this respect.
That the grandmother is restrained from bringing the children into contact with, or communicating with, Mr Z.
That the mother be and is hereby restrained from:
a.   Questioning the children regarding these proceedings or any allegations made in these proceedings; and
b.   Questioning the children regarding any allegations made in respect of proceedings before the District Court; and
c.   Without admissions, using or being under the influence of an illegal drug or from consuming or drinking alcohol over and above the legal limit for driving whilst the children are in her care.

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

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

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 109 of 2016
File Number: SYC 5 of 2013

Ms Scarle

Appellant

And

Ms Ringwood

First Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Before the Court are an appeal and a cross-appeal brought against orders made by Judge Brewster on 27 June 2016.
Ms Scarle (“the mother”) appeals orders which arise from child‑related proceedings concerning her two children, M, born

in 2008, aged seven at the time of final hearing, and H, born

in 2010, aged six at the time of final hearing (“the children”).
The first respondent to the appeal is the maternal grandmother, Ms Ringwood (“the grandmother”). Mr Arrow, the children’s father, is named as the second respondent to the appeal. However, he did not participate in the appeal or in the proceedings at first instance.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the children’s interests at first instance and on 8 August 2016 she filed a notice of cross-appeal in relation to the trial judge’s failure to make certain orders sought by the ICL. We will deal with the cross-appeal after first considering the mother’s appeal.
Other relevant adults in the proceedings are Mr Z, who married the grandmother on 20 July 2013, and the mother’s partner, Mr L. Mr L has four children who were aged between eight and 16 at the time of trial and with whom he has regular contact.
The mother filed an application in an appeal on 8 November 2016 seeking leave to file a summary of argument, dated 25 October 2016, which did not comply with r 22.22 of the Family Law Rules 2004 (Cth) as it was in excess of 10 pages. The application also sought leave to file an amended notice of appeal, dated 25 October 2016. Neither the grandmother nor the ICL objected to the filing of either document at the hearing of the appeal. We granted leave for both the summary of argument and the amended notice of appeal to be filed.
At the hearing of the appeal the mother sought to tender an affidavit filed on

7 January 2013, which formed part of the first instance record. At [28] of her summary of argument dated 25 October 2016 she also sought that the Full Court view two videos, being Exhibit 9, which were also part of the trial record. Again in the absence of objection, the affidavit was tendered and accepted to form part of the appeal record and members of the appeal bench viewed the videos.

The Appeal

The orders under appeal provided, inter alia, that the mother and grandmother have equal shared parental responsibility for the children and that the children live with the grandmother and spend time with the mother on the second and sixth weekend of each school term, as well as half of each school holiday period. There is provision in the orders for the mother to spend additional weekends with the children, provided specified notice is given to the grandmother and that such time occur in the area near the grandmother’s home.
The gravamen of the mother’s appeal is that the trial judge should have made orders for the children to live with her. A corollary of this is that the time the children have with her is inadequate.
The orders appealed were made in the context of proceedings which were described by the trial judge as being a “dispute as to the arrangements that should apply in relation to” the children. Such description belies the issues permeating the proceedings. Central to the mother’s case at first instance were allegations that the children were at risk of sexual abuse by Mr Z.

A significant factual issue on the grandmother’s case was whether the mother poses a risk to the children as a consequence of what was said to be her excessive consumption of alcohol and her poor parenting generally. It was also part of the grandmother’s case that Mr L poses a risk to the children because of his persistent questioning of the children about the sexual abuse allegedly perpetrated against them by Mr Z.
The mother and the grandmother also each sought orders that the other be restrained from bringing the children into contact with the other’s partner.

An order of restraint was made in relation to Mr Z which prevented him from coming into contact with the children. The grandmother did not oppose that order. In the case of Mr L, the trial judge declined to make such an order. This refusal lies at the heart of the cross-appeal
The central part of the mother’s appeal is that, in determining the case, the trial judge erroneously based his decision on the “status quo” in relation to the children’s living arrangements. In support of this argument the mother relies on [74] of the trial judge’s reasons where he says:
74.I now turn to the crucial reason why I have made orders which maintain the present situation where the children reside with the grandmother. Essentially it is because of the past history of this matter. I am satisfied that for a period prior to the mother taking the children in December 2012 the grandmother was the primary carer. Since the children were returned to [the grandmother] in early 2013 she has, of course, been their only carer. Their time with the mother has been somewhat circumscribed. This is now a period in excess of three years. This is half [of H’s] life and getting on to half of [M’s] life. I have little doubt that it would be extremely unsettling for the children to be removed from the care of the grandmother and placed in the care of the mother and [Mr L].
The mother asserts that by adopting this approach, that is, essentially basing his decision on the status quo for the last three years (having also found that the mother is “well able to cater for the needs of the children including emotional and intellectual needs” (at [53])), his Honour failed to consider many relevant issues which find their expression in s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”). She asserts that in elevating the status quo to the most important or exclusive factor the trial judge failed to consider other relevant and important issues.
Some of the trial judge’s findings are also challenged, particularly the finding that the children were in the primary care of the grandmother prior to December 2012. There is also a challenge to the trial judge’s failure to address the issue of credit.

Preliminary comments

Whilst not the subject of any ground of appeal, we wish to comment upon some matters of concern about how this case proceeded.
On 15 February 2013 the children were removed from the mother by the police pursuant to a Recovery Order made ex parte (by a different judge) on

5 February 2013 in favour of the grandmother, a non-parent, who until contemporaneous parenting orders were made had no orders in her favour. Subsequently it emerged that the grandmother, far from being ignorant about the mother’s capacity to be contacted, which she had claimed in support of the need to proceed ex parte, had in fact been in email and phone contact with the mother before and after the Recovery Order application was made and before it was executed. No notice of the application or the order was given to the mother at any time prior to the removal of the children from her care by the police on 15 February 2013.
The trial judge acknowledged the problems with the making of the Recovery Order and said at [12]: “Certainly the issue of a Recovery Order was a very dramatic step and not one that I would have taken had I been handling the case in early 2013.” We agree. At best the evidence adduced by the grandmother suggested a Commonwealth Information Order and/or Location Order was required, followed by a prompt hearing. The consequence of the Recovery Order was that the children were removed by the police and placed with the grandmother. The mother had no opportunity to oppose the application or deny the serious allegations made against her, virtually until the hearing three years later.
Some of the procedural history of the matter is also of concern. In particular, on 29 April 2014 the matter was set down for hearing on 3 March 2015. The listed date was thus almost 12 months after setting down. In a case where the children were removed from the mother pursuant to an ex parte Recovery Order and no real opportunity was afforded for any kind of an interim hearing, a further delay of 12 months could potentially create a real injustice and compromise the best interests of the children.
Compounding this delay, the matter was adjourned by consent on 3 March 2015 (to acquire evidence about Mr Z) and in June 2015 the matter was again listed for hearing on 15 September 2015. This hearing date was administratively vacated and the matter was ultimately listed for hearing in February 2016, a further delay of five months.
We accept that there are notorious pressures on the Federal Circuit Court and the almost 12 month delay between the 2014 and 2015 hearing dates appears to simply be the result of pressure for hearing dates.
But a functioning and fair legal system, particularly where the welfare of children are concerned, requires that real meaning be given to the term “access to justice” and it is difficult to accept that it was afforded to the mother in this case. The matter was in the Federal Circuit Court from 3 January 2013 to

27 June 2016 – a period of three-and-a-half years. The children were four-and-a-half and almost three respectively when proceedings commenced and nearly eight and six when they concluded. By the time of the hearing, one half of their lives had been spent in the legal system without any comprehensive judicial determination about the circumstances in which they initially came to be living with the grandmother and what future orders should be made. The comments of the trial judge, which we have set out at [12], are at the heart of this concern.

Some background

The grandmother is 59 years of age. The mother is 35 years of age.
Mr Z is 47 years of age. The mother’s partner, Mr L, is

46 years of age. He and the mother commenced their relationship in mid-2012 and they live together at Suburb X on the Central Coast of New South Wales.
The children’s father resides in Queensland and sees the children sporadically.
In 1994 Mr Z commenced cohabitation with the mother of Ms W. Ms W was then aged four. They separated in 1996. He commenced cohabitation with the grandmother in 2011 and they were married in 2013. As will be further discussed, at the time of final hearing Mr Z had been recently charged with offences relating to the sexual abuse of Ms W. On the third day of the trial, the grandmother advised the Court that she and Mr Z had separated and that if the children were placed in her care she would not resume cohabitation with Mr Z.

A chronology of events

The chronology that follows concerns the events prior to the proceedings and subsequently, up to the time of judgment. It is instructive in relation to the appeal, and probably in relation to the hearing itself, had the trial judge set it out. We acknowledge, however, that many of the facts ultimately established, and now uncontroversial, emerged in the three years in which the matter was awaiting a hearing.
In July 1996 Ms W reported to the police that Mr Z had caused her to perform oral sex on him on a number of occasions. She was then eight years of age. In late August 1996 the police applied for the issue of a warrant for the apprehension of Mr Z with respect to unlawful sexual assault on a person under 12. It seems the warrant was not executed.
In 2004 Mr Z spent some time in prison (on unrelated charges). In 2005 Mr Z was convicted of breaching a bail undertaking made in 1996 and was fined and imprisoned for 10 days.

In 2007 the grandmother commenced a relationship with Mr Z.
Prior to the birth of the children in 2008 and 2010 respectively, and subsequently, the mother lived for significant periods with the maternal grandmother. As a result the grandmother was significantly involved in the care of the children from their birth, albeit there was a significant factual dispute as to the extent of the role she played.
In March 2012 the mother and grandmother moved to Town K in Southern New South Wales. Shortly thereafter, the mother commenced a relationship with Mr L. The mother initially spent each second weekend with him and on those occasions the children remained with their grandmother. His Honour found (at [9]) that towards the end of 2012 the mother was spending an increasing amount of time with her partner and her absences from the children became longer and more frequent.
This culminated in an incident on 22 December 2012, when the mother attended her half-sister’s home where the grandmother and children were visiting. The mother came to collect the children and, when the grandmother refused, the mother left and returned with the police. Ultimately, with the support of the police, the mother left with the children. A significant factual dispute which was unresolved by his Honour arises from the period immediately preceding 22 December 2012 and what occurred on that date; this will be discussed later.
From 24 December 2012 the mother, Mr L and the children went on a camping holiday. The mother’s evidence in her affidavit filed on 3 February 2016 was that Mr L informed her that, while he was showering with the children, M pointed to his penis and said: “[Y]ou’ve got a big penis just like poppy [Mr Z]… poppy told me to wee on him.” The mother asserted that in the course of the same holiday, M said to her: “Mum be careful when you wipe my bottom … When poppy wiped my bottom, the toilet paper broke and it hurt. He had to put his finger in my bottom to get the toilet paper out. Don’t hurt me mum.” The mother further asserted that in the course of toileting, she told M not to touch his faeces and he said: “We do, that’s a game we play with poppy … I poo on [H], and poppy takes photos.”
On 2 January 2013, without any notice to the mother, the grandmother filed an application in the Federal Circuit Court seeking that the children be returned to her. She sought an order for sole parental responsibility and for the children to live with her and spend time with the mother as determined by the court.
A notice of child abuse alleging physical and emotional abuse of the children was filed by the grandmother at the same time, wherein she alleged that the mother had physically and psychologically abused the children, calling them “fat”, “stupid”, “little assholes” and striking the children in a manner exceeding the bounds of ordinary discipline. The grandmother also alleged that the children had witnessed the mother assault her and that the mother had a serious alcohol and marijuana problem.
On 30 January 2013 Mr L informed the mother that M had said to him: “Poppy told us to wee and poo on each other.”[1]
[1] Affidavit of Mr L filed 3 February 2016 at [40].
On 31 January 2013 the grandmother filed an amended application seeking orders for the children to live with her. She also sought Location and Recovery Orders.
On 5 February 2013 the grandmother’s application came before the Federal Circuit Court and leave was granted to the grandmother to proceed ex parte. The Location Order and an order for recovery of the children were both made.
The mother and the grandmother were in contact via email and text message between 2 January and 16 February 2013 regarding arrangements for the mother to collect her belongings.
On 9 February 2013 the mother moved into Mr L’s home and commenced cohabitation with him.
Mr L deposed that, on 12 February 2013, he saw the children playing and it appeared that H had faeces smeared on his back and fingers and was trying to rub the faeces onto M. When questioned, M said: “[W]e used to do that with poppy … [i]n Sydney.” H then said that he wasn’t going to talk about that and, when the mother and Mr L tried to express that it was alright for him to talk to them, H said: “No, I will get in trouble.”[2]
[2] Affidavit of Mr L filed 3 February 2016 at [42].
On 15 February 2013, without prior notice to the mother, the Recovery Order was executed and the children were removed from her care and placed in the care of the grandmother, where they have remained.
Following the execution of the Recovery Order, the mother advised the police that she had concerns that the children were at risk of abuse from Mr Z and made a report to the Department of Family and Community Services (“DoCS”).[3]
[3] Mother’s outline of case.
On 24 February 2013 the mother called the grandmother and spoke with the children for a short time.
On 25 February 2013 the grandmother’s solicitors wrote to the mother’s solicitors advising that all contact between the mother and the children was thereafter terminated. That letter also conveyed the grandmother’s solicitor’s instructions that Mr Z was preparing to commence a defamation action against the mother and Mr L.
Also on 25 February 2013, the grandmother’s solicitors wrote to Mr L alleging that he
… and [the mother] have made a number of unsubstantiated disgusting claims about my client’s partner to a number of parties.
I am instructed that should not behaviour [sic] immediately cease my client’s partner will commence a defamation action against you and
[the mother].
On 26 February 2013 the mother’s solicitors wrote to the grandmother’s solicitors seeking particulars in relation to Mr Z, specifically the correct spelling of Mr Z’s full name, his date of birth and the state in which he served time in prison.
On 27 February 2013 the grandmother’s solicitors wrote back via email, saying:
The gentleman you refer to is not my client. I can’t assist with the details requested as I do not have the information.
I would point out the general legal principle that once someone has suffered any penalties imposed by the Court they are entitled to move on freely with their lives.
On 28 February 2013 the mother filed a response seeking that she and the children’s father have equal shared parental responsibility for the children, for him to spend time with the children as agreed and for the grandmother to spend time with the children once a month. She also filed a notice of risk of abuse alleging the children had made disclosures of sexual abuse by Mr Z and an application seeking orders for the provision of further information about

Mr Z, an order for the recovery of the children and an order for the children to live with her.
The matter came before the court on 19 March 2013, when orders were made for the appointment of an ICL and for the children to live with the grandmother until further order. The mother was given telephone contact with the children and an order was made that she spend time with them from 10 am to 4 pm each Saturday, with the mother to collect the children from and return them to the Town K Railway Station.
On 20 April 2013 the mother told the grandmother at changeover, in the presence of the children, that the grandmother had not kept the boys safe, that Mr Z had abused them and that she would report this to the police and the children would have to go into care.
On 26 April 2013 M was interviewed by officers from the New South Wales Joint Investigation Response Team (“JIRT”). They reported that the child was coherent and appeared to be happy in his environment, and did not make any disclosure of sexual harm.
On 7 May 2013 when the matter next came before the court, the orders made included, in particular, an order that the children were not to be left in the sole care of or bathed by Mr Z.
In mid-2013 the grandmother married Mr Z.
On 2 September 2013 the mother’s solicitors issued a subpoena directed to police for Mr Z’s criminal record.
In September 2013, as a result of the JIRT investigation, the grandmother and the children temporarily moved out of the home she shared with Mr Z.
On 18 September 2013 the mother inspected the subpoenaed material produced by police in relation to Mr Z and discovered that, in the early 1990s, allegations had been made by Ms W, then aged eight years, that when she and her mother lived with Mr Z he had sexually abused her. It was also revealed that in 1993 Mr Z was convicted of indecent exposure, apparently exposing his penis to a young female service station attendant at night and, when apprehended, saying words to the effect: “country girls like that sort of thing.”[4]
[4] At [26] of the reasons for judgment.
On 19 September 2013 Mr L contacted DoCS and outlined what was in the subpoenaed material and requested that the matter be reopened. On the same day, JIRT contacted the grandmother and advised that the police were investigating some allegations about Mr Z. The grandmother made arrangements to stay at her son’s home so that the children would have no contact with Mr Z.
Mr L asserted that, on 21 September 2013, M made further disclosures of sexual abuse by Mr Z, which the mother and Mr L reported to the police and DoCS. However, when interviewed, M made no new disclosures.
On 22 September 2013 when the matter was again before the court, an order was made for the appointment of Dr O as the single expert but, apart from one page, her report was never introduced into evidence.
On 3 October 2013 the mother filed an application seeking orders that the children live with her and spend no time with the grandmother, that DoCS be invited to intervene in the proceedings and that the matter be transferred to the Magellan program in the Family Court.
On 14 October 2013 the grandmother was informed that JIRT had concluded their investigation and that the police did not wish to interview

Mr Z. The grandmother was told that she and the children could return home and resume living with Mr Z.
On 15 October 2013 the mother spoke the mother of Ms W, who told her that Ms W had been sexually molested by Mr Z when she was between the ages of four and six.
On 17 October 2013 Ms W sent an email to the mother confirming this allegation. The email in part said:
When I was asleep he would also sneak into my room through the window and touch me while I was sleeping, I would always wake up to him standing over me naked. He would always put his hand over my mouth to stop me from screaming. Just like your kids, he made me urinate and defecate in front of him too. He would kidnap me and the only way I could get home is [sic] running away from him when he wasn’t watching me, and much more. He always video recorded me sucking his penis and took photos of me naked too.
On 18 October 2013 the grandmother filed an application in a case seeking the continuation of the 19 March 2013 orders and a restraint upon Mr L having contact with the children.
On 26 October 2013 Ms F, the mother’s cousin, reported to DoCS that, during a conversation between herself and M, he had made allegations that Mr Z had urinated in his mouth, kicked him and touched him on his bottom. On

23 November 2013 Ms F made another report to DoCS about a further conversation that had taken place between herself and M, during which he asserted that Mr Z had punched him in the face and sexually assaulted him and H.
In November 2013 a further report was made to DoCS by the mother alleging that Mr Z had harmed the children.
On 9 December 2013 the matter came before the court again and orders were made by consent as to the mother spending time with the children. The orders provided for:
·The suspension of the mother’s unsupervised time with the children;
·The children to spend time with the mother on a supervised basis for three hours each alternate Sunday until services at Contact Centre C became available, at which point the time would be reduced to two hours;
·The mother to use her best endeavours to ensure Mr L did not accompany her when spending time with the children;
·The mother to attend therapy;
·The mother and grandmother to complete a child-focused parenting program;
·The parties to enter into undertakings not to question the children about the proceedings, nor to make any inappropriate remarks about any other adults in their lives; and
·The mother to request that Mr L provide similar written undertakings.
From December 2013 until June 2015 the mother’s time with the children was supervised by an agency called Agency P.
On 29 April 2014 the matter was fixed for hearing with affidavits to be filed by 13 February 2015.
On 20 January 2015 a summons was issued against Mr Z in relation to an alleged offence from 1995 returnable in March 2015. The police forwarded a letter to the Federal Circuit Court advising that Mr Z had been charged with persistent sexual exploitation of a child (two counts). The child concerned was Ms W.
In February 2015 the grandmother filed an amended initiating application seeking:
·Sole parental responsibility for the children;
·The children live with her;
·The mother have supervised time with the children;
·The mother be restrained from consuming alcohol and being under the influence of drugs while spending time with the children.
On 4 March 2015 the grandmother advised that Mr Z had moved out of the grandmother’s home and said that she would not allow the children to come into contact with him.
On 5 March 2015 the matter came before the court again with the mother applying to adjourn the hearing and for the children to live with her or, alternatively, that she have unsupervised time with the children. The hearing was vacated and an order was made providing for the preparation of an additional expert report by Dr B. The court was also advised that Mr Z had been charged in relation to historical sexual offences.
On 13 April 2015 Ms F filed an affidavit in the proceedings setting out, inter alia, allegations that M had informed her on two occasions in October and November 2013 that Mr Z had hurt and sexually assaulted him.
The matter came before the court again on 30 June 2015 when an interim order was made providing for:
·The grandmother to be restrained from bringing the children into contact with Mr Z;
·Progression to unsupervised time between the mother and the children; and
·The matter to be fixed for final hearing on 15 September 2015.
In particular, the progression to unsupervised time between the mother and children was in the following terms:
2.Following completion of two (2) months of supported time with the children at [Contact Centre C, Town N] the children … are to spend unsupervised time with the mother as follows:
a) Each Saturday from 10:00am to 2:00pm for a period of four (4) weeks;
b) Thereafter, each Saturday from 10:00am to 4:00pm for a period of four (4) weeks; and
c) Thereafter, each Saturday from 10:00am to 10:00am on Sunday for four (4) weeks.
3. FORTHWITH the children … are to spend time with the Mother in addition to the times set out in Order 5 above for periods of up to four (4) hours each alternate week, such alternate week being a weekend on which [Contact Centre C] time does not occur in accordance with the Orders dated 9 December 2013, such time to be supervised by
[Agency P] and to be paid for by the Mother.
4. For the purposes of changeover to give effect to Orders (2) and (3) above the Mother is to collect the children … from the grandmother at the commencement of the time with the children and the mother must return the children to the grandmother at the conclusion of the time with the children at [Railway Station, Suburb D in south-western Sydney].
Throughout August, the grandmother did not facilitate time in accordance with the orders of 30 June 2015.
In August 2015 the parties were advised that the court was no longer able to hear the matter and the final hearing dates were vacated and the matter listed for mention on 21 September 2015.
On 31 August 2015 the mother recommenced “supported time” with the children for two hours per fortnight at Contact Centre C.
On 11 September 2015 the grandmother’s solicitors advised the mother’s solicitors that the grandmother would only facilitate supervised time.
On 29 September 2015 orders were made in chambers aimed at setting the matter down for final hearing commencing 15 February 2016.
In January 2016 the mother agreed to submit to random comprehensive drug testing.
The hearing commenced on 15 February 2016. On the first day of the hearing the court was advised that the Director of Public Prosecutions might decline to continue with the prosecution of Mr Z. However, on the second day of the hearing the court was advised that the District Court before which the matter had been listed for directions had indicated the matter was proceeding.
On the third day of hearing the grandmother indicated that she would end her relationship with Mr Z if the children were to live with her.
The hearing concluded on 17 March 2016 and reasons for judgment were delivered on 27 June 2016.

Grounds of appeal

The amended notice of appeal contained 15 grounds. We have concluded that there is merit in these grounds and for the reasons that follow we propose to allow the appeal. To some extent, our concerns about the judgment were presaged by his Honour’s comment at [4] of the reasons for judgment: “Having regard to all the issues that were ventilated at the hearing of this matter the parties might reasonably regard this judgment as being somewhat cursory. That would be accurate.”
Ground 1 of the mother’s amended notice of appeal asserts failure to consider and/or failure to give reasons or adequate reasons in relation to:
1.1.Section 60CC[(3)](f) – the capacity of each of the parties to provide for the needs of the children including emotional and intellectual needs.
1.2.Section 60CC[(3)](i) – the attitude of each of the parties to the children and not [sic] the responsibilities of parenthood.
1.3.As well as Section 60CC[(3)](d) [being the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other person (including a grandparent) with whom he or she has been living.]
In Ground 2 the mother argues that, in finding that the most crucial or significant reason for the children to remain in the care of the maternal grandmother was the status quo, the trial judge failed to properly consider or consider at all the quality of the status quo.
In Ground 3 the mother argues that the trial judge was in error in finding that the determinative factor was the status quo when there was a clear differentiation between the parties’ parenting capacity.
Ground 4 asserts that the trial judge failed to consider or appreciate the maternal grandmother’s conduct and attitude generally, which “disclosed significant detriments to her parental capacity”.
Ground 5 submits that the trial judge failed to reflect on the fact that the proposal made by the grandmother during final submissions at the trial was at odds with the proposal that she had maintained from the day the children were recovered from the mother, which commenced three years of litigation.
In Ground 6 the mother argues that the trial judge failed to consider the capacity of the grandmother to facilitate the children’s relationship with the mother, particularly in circumstances where the grandmother was of the view that the mother caused the end of her relationship with Mr Z.
In Ground 7 the mother asserts that the trial judge’s findings in relation to the maternal grandmother’s conduct in obtaining a Recovery Order and failing to disclose crucial facts as to Mr Z’s name and date of birth early in the proceedings could not be excused because of the advice from a solicitor.

Ground 8 argues that the trial judge failed to properly assess the evidence relating to the allegations of alcohol abuse by the mother such that it is not possible to follow a pathway whereby the trial judge reached his conclusion.
In Ground 9 the mother asserts that the trial judge’s finding that the mother abused alcohol prior to December 2012 such as to affect her capacity to care for the children was wrong, against the weight of evidence or simply not available to him, particularly in circumstances where the court relied on the evidence of the grandmother, who was prepared to go to extreme lengths including being untruthful and causing the mother much difficulty in seeing the children.
Ground 10 asserts that the trial judge erred in failing to address the issue of credit, particularly in circumstances where the children will, pursuant to the orders ultimately made, be living with the grandmother for some 13 years.
Ground 11 argues that the trial judge failed to reflect on the maternal grandmother’s attitude towards the mother and the possible effect of that attitude on the children, should it be maintained.
Ground 12 asserts that the trial judge failed to provide reasons for his findings that the maternal grandmother was the children’s primary carer in the time prior to when the children were removed from the mother pursuant to the Recovery Order.
In Ground 13 the mother argues that the trial judge’s finding that the grandmother was the children’s primary carer prior to December 2012 was simply wrong, or at least against the weight of evidence, particularly in light of the fact that the grandmother was in full-time employment during the relevant period.
In Ground 14 it is argued that the trial judge failed to provide procedural fairness to the mother by failing to canvass with her counsel a restrictive time with regime during school terms.
Ground 15 asserts that the trial judge’s finding that the mother’s time with the children during school terms should be restricted was against the weight of evidence and not in the interests of the children.
Within the rubric of these grounds counsel also submitted that the trial judge made findings that were not open on the evidence and that there were a number of areas in which the evidence of the grandmother was demonstrably untrue and/or did not support the findings.
The mother’s summary of argument summarised the attack on the judgment on six bases, as follows:
26.1. The Trial Judge failed to properly consider at all the parental capacity of the maternal grandmother as opposed to the natural Mother.
26.2.The Trial Judge failed to give adequate or satisfactory reasons as to why in the circumstances of this case that [sic] the issue of status quo would be the deciding factor.
26.3.The Trial Judge failed to consider at all the concept of the attitude to the children and responsibilities of parenthood demonstrated by the maternal grandmother.
26.4.The Trial Judge failed to consider credit and as such the impact of the untruths told by the maternal grandmother and her flagrant disregard for Court Orders were not taken into account at all in his Honour’s deliberations.
26.5.In view of the maternal grandmother’s capacity to tell outright lies, the failure of Mr [Z] to give evidence, the incorrect evidence given by the single expert and the Mother’s evidence to the contrary the Trial Judge’s finding that the Mother’s alcohol use affected her capacity to care for the children prior to 26 December 2012, [sic] was erroneous.
26.6.The Trial Judge failed to provide the Mother with procedural fairness prior to making Orders that she exercise time with the children in the [Town K] area on most of her weekends during school terms. Such Order was contrary to the best interests of the children.
Counsel for the mother submitted that Grounds 1 –13 overlapped and dealt with them collectively. We will treat them in the same way. As there were a plethora of issues underlying the various grounds, it is convenient to discuss the grounds under the subheadings of the various issues.

Discussion

The mother’s alleged alcohol abuse

At [53] of the reasons for judgment, the trial judge found that:
53.… I am satisfied that for a significant period when the mother lived with the grandmother she was unable to provide adequately for the children’s physical needs by reason of alcohol. As I have indicated I am satisfied this is no longer a problem. I am satisfied that she is well able to cater for the needs of the children including emotional and intellectual needs.
At [62] – [68] inclusive, his Honour deals with the question of the issue of the mother’s abuse of alcohol. At [62] his Honour states that:
62.… it is plain that this is not a recent invention by the grandmother following the start of this litigation. [DoCS] have records in relation to allegations made in July 2012 about the mother “struggling with alcohol” and “drinking 2–4 bottles of wine per day every day.”
Some corroboration of this was provided by witnesses, Ms T, the grandmother’s other daughter (the mother’s half-sister) (at [63]), and the grandmother’s daughter in-law (at [64]).
On the other hand, the allegations were refuted by the mother, whose evidence was that prior to February 2013 she consumed on average “a glass or two of red wine on 4 or 5 nights per week when the children were in bed”.[5] The mother’s refutations were corroborated by the grandmother’s mother (at [65]), and Ms F, the mother’s cousin (at [66]). At [67] his Honour acknowledged that counsel for the mother had “analysed and tendered records of alcohol purchases which would indicate that the grandmother’s evidence about the extent of the mother’s alcohol consumption may be exaggerated”; and at [68] noted that “[t]he evidence of each witness must be approached with caution”. His Honour then said, also at [68]:
But in the end I accept the evidence of the grandmother, [Ms T, the grandmother’s other daughter], and [the grandmother’s daughter in-law] to the extent that I am satisfied that, whatever the alcohol consumption of the mother was, it significantly compromised her ability to care for the children.
[5] Affidavit of Ms Scarle filed 3 February 2016 at [104].
The criticism that the trial judge did not give reasons for accepting the evidence of some witnesses over others has validity. Nevertheless, although his Honour concluded that the mother’s consumption of alcohol “significantly compromised her ability to care for the children”, the decision can in no way be said to turn on this finding because, as we have explained, at [53] the trial judge found that her consumption of alcohol was “no longer a problem” and that he was “satisfied that she is well able to cater for the needs of the children including emotional and intellectual needs”. In our view, the relevant part of the argument is the more nuanced issue of the grandmother’s evidence that goes generally to the question of her capacity to provide for the emotional and intellectual needs of the children and her attitude to the children and responsibilities of parenthood. Put another way, it was an example of what counsel asserted to be the general unreliability of the evidence of the grandmother. There is no doubt that the mother drank alcohol on her own admission prior to the Recovery Order being made in February 2013. The issue was the extent of it and whether the grandmother’s evidence should be believed.
This evidence also had another effect in that it was a basis for obtaining the ex parte Recovery Order which placed the children in the grandmother’s care in February 2013. The grandmother’s evidence was that the mother drank four to six bottles of wine a day and was incapable of caring for the children. During this time the grandmother was going to work each day and leaving the children in the mother’s care.
Again at [38] the trial judge referred to the need to protect the children from physical or psychological harm and said that there “was an issue in the past in that the mother consumed alcohol to excess during the period she lived with the grandmother and this compromised her ability to care for the children.” His Honour was however satisfied that “these problems are now resolved and for the time being at least there is no indication that they will recur.”
Notwithstanding evidence of purchases which did not match the evidence of the grandmother, she refused to make any concessions. More importantly, as in our view his Honour ought to have noted, she refused to accept that the mother had changed, despite a complete lack of evidence, as his Honour found, of any current drinking by the mother. Several pieces of the cross-examination of the grandmother exposed this attitude. For example:
MR GIVNEY: … Does it give you any solace that in the last two years, when she has been supervised and travelling these distances, that there’s no evidence that she has ever been late? Does that make you think, well, perhaps, she’s not a drunk any more?---No.
No. When you reflect on the fact that she has been travelling in a train, six hours down and six hours back – just no apparent reporting that she smelled of alcohol – was affected by alcohol when she arrived at contact. Does that give you any thought that she may have got over this drinking problem?---I hope she would.
Well, do you think about her behaviour, at all, at these contact places?---Like I said before, I know that she can do it on short periods of time.
Right. So your view is that she will never recover from the problem she had from alcohol; is that right?---I don’t think she’s admitting she has got a problem, so - - -
It’s not a hard question, is it? You say - - -?---Well, that’s what – I don’t know.
You say she has got a problem, don’t you?---I think she has.
Four to six bottles a day in anyone’s language is a problem, isn’t it?---Yes.
Right. So you say in 2012 she had a problem with alcohol?---Yes.
But since December 2013 you haven’t seen one report, an allegation, an assertion, anywhere in all the documents that have been produced in this court in the last two years, suggesting in any way that she even smelled of alcohol. Do you agree with that?---Yes.
Right. Does that give you food for thought to think, well, she mightn’t have an alcohol problem any more?---No.
(Transcript of proceedings, 15 February 2016, p 33)
During the cross-examination of Dr B, the expert witness, the question of the mother’s drinking was canvassed. The following exchange occurred in relation to the grandmother’s assertion that the mother is an alcoholic and had been drinking four to six bottles of wine per day:
HIS HONOUR:   Six bottles has got to be an exaggeration, doesn’t it?---That’s – I absolutely agree. Yes.
It would knock over a horse?---That’s – that would certainly knock someone out.
MR GIVNEY:   Do you agree with that, do you, doctor?---That six - - -
It has to be an exaggeration?---Six bottles of wine - - -
Well - - -?--- - - - would – the mother is of slight frame. It would - - -
- - - that’s a report to the [DoCS] about my client?---Yes.
And you regard that as a gross exaggeration, do you?---I didn’t say gross exaggeration.
HIS HONOUR:   Well, I put – I put those words in her mouth, I have to say.
MR GIVNEY:   Right. Well, exaggeration?---Okay. The two things I will say – would say about that: six – is - - -
HIS HONOUR:   I mean ..... six bottles of wine – God. The mind boggles. I mean - - -
MR GIVNEY:   Well, that’s the case I’m facing, your Honour.
HIS HONOUR: - - - really, you would be – you would be almost dead.
(Transcript of proceedings, 10 March 2016, p 508)
The exchange concluded with the following:
HIS HONOUR: … I could make a finding that [the grandmother] exaggerated when she said six bottles a day, but nevertheless your client had a problem however many bottles she drank – less than six I would presume – she has a problem. I could make that finding notwithstanding the fact I don’t believe it would be six bottles a day.
(Transcript of proceedings, 10 March 2016, p 510)
Other matters that conflicted with the evidence of the grandmother included:
(1)The mother was not affected by alcohol when she sought to retrieve the children from the maternal grandmother on 22 December 2012;
(2)The observation of the police officer when the children were removed from the mother on the Recovery Order;[6]
(3)There was no evidence the mother had ever been convicted of any drink driving offences;
(4)The mother conceded in oral evidence that she was drinking alcohol to excess in circumstances where she said she was drinking “half a bottle of wine” on occasions;[7]
(5)The mother produced bank statements and a schedule of alcohol purchases made between March and December 2013, which established she was not purchasing the volume of alcohol she was alleged to have purchased and consumed;
(6)The grandmother acknowledged the mother drove the grandmother’s motor vehicle at times;[8]
(7)The grandmother was in full-time employment between March 2012 and December 2012 in circumstances where she asserted the mother was incapable of caring for the children.
[6] Exhibit “M14”.
[7] Transcript, 17 February 2016, p 244.
[8] Transcript, 15 February 2016, p 36.
Another incident that suggested his Honour should have treated the grandmother’s assertions with some caution was the grandmother’s account of what occurred when the children were removed from the mother by the police. The following exchanges with counsel for the mother illustrate the point:
MR GIVENY: But when the police - - -?--- - - - invoked her to create scenes.
- - - removed the children from her, there was no hysteria, was there?---No.
No evidence of her being drunk?---No.
None?---No. I was surprised.
None. In fact, there’s no evidence of her being drunk since that day, is there, anywhere?---Yes, it’s very surprising; yes.
No. It’s amazing, isn’t it?---Yes.
All the subpoenas that are out there, all the travel on trains, all the contact changeovers. Not one piece of evidence that even suggests that she’s drinking alcohol?---I believe she can - - -
Does that in any - - -?--- - - - sustain herself for a short period of time.
- - - way, madam, make you think “well, perhaps she’s not drinking at all”?---No, I don’t believe that.
You don’t believe that?---No.
(Transcript of proceedings, 15 February 2016, pp 53–4)
Other incidents support the assertion that the grandmother’s evidence as to the mother’s drinking should have been treated with greater caution. One such incident is that which occurred on 22 December 2012 (mentioned above at [32]) when the mother went to collect the children from the grandmother and took them into her care.
As at 6 December 2012 the mother was living with the grandmother, Mr Z and the two children. It is not disputed that the mother agreed for the grandmother and Mr Z to take the children to visit Mr Z’s parents interstate.[9] There was also consensus between the parties that a few days afterwards they had a conversation in which the grandmother indicated that they were no longer going to visit Mr Z’s parents but were going to go somewhere closer to home instead. The parties then agreed that the mother would spend time with

Mr L and would meet them back in Town K for carols by candlelight.[10] The mother says this was on 12 December and the grandmother says it was on

14 December, but nothing turns on this. The mother says that she then proposed to spend time with Mr L and his children on the weekend of

14 and 15 December 2012 and that she wanted to take all of the children camping on the following weekend of 22 and 23 December 2012.
[9] Affidavit of Ms Scarle filed 3 February 2016 at [123].
[10] Mother’s outline of case.
The evidence was consistent that the parties were to meet at the park at Town K for Christmas carols. In terms of what happened, the evidence of the grandmother is internally inconsistent. She asserted that the mother left the children in her care on 6 December 2012 and she had no idea when the mother was coming back. In the next paragraph she says:[11]
I took [the children] to Carols by Candlelight in [Town K] on
[11] Affidavit of Ms Ringwood dated 18 January 2016 at [120].
14 December 2012. [The mother] was expected at this event but did not attend. In the week leading up to Carols by Candlelight, [the mother] had phoned several times to say she was going to be home for the carols.
The mother’s evidence is that she was returning to Town K when they had a flat tyre and she telephoned the grandmother advising that they were stuck, were not going to make the carols and that she would be down the following day. She asserts that the grandmother said that there was no need for concern, that she might as well stay with Mr L and they agreed that the mother would meet them on 22 December 2012.
The mother says that she spent the weekend with Mr L and met his children and that on 18 December 2012 she had a further conversation with the grandmother in which she said they would meet at Ms T’s house on

22 December. The mother’s evidence is that during that conversation she said that she was going to take the children camping with Mr L and his children.
The grandmother’s evidence is that when the mother did not attend carols by candlelight, she rang the mother to see why she had not attended. The grandmother agrees that the mother was going to come to Ms T’s house on 22 December 2012.
These matters assumed some importance because they ultimately led to the application for the Recovery Order by the grandmother. As explained, on the mother’s version, she was in touch with the grandmother and explained why she was not at the Christmas carols. On the grandmother’s version, she did not know when the mother was coming back, although she was expecting her on

14 December at the Christmas carols and she concedes that there were several phone calls in the week leading up to the carols during which the mother said that she was going to be home for them.[12] No attempt was made by his Honour to deal with the discrepancies in the parties’ versions of events.
[12] Affidavit of Ms Ringwood dated 18 January 2016 at [120] to [122].
These events led to the incident which occurred on 22 December 2012.

As mentioned, prior to that day the mother had indicated by phone to the grandmother that she wanted to take the boys camping with Mr L and the grandmother refused.[13]
[13] Affidavit of Ms Ringwood dated 18 January 2016 at [127].
On 22 December the mother and Mr L arrived at Ms T’s house so that she could collect the children. The mother asserts that Ms T, her half-sister, said to her words to the effect: “You’re not welcome, you’re drunk.”[14] The mother denies having consumed any alcohol. Whilst the grandmother in

cross-examination asserted that she had not made an allegation that the mother was drunk on that day, it seems apparent that somebody had. When the mother was prevented from taking the children, the police were called and attended. The police asked to breath-test both the mother and Mr L. That breath-test produced a 0.0 result for each of them. The mother asserts that the grandmother told the police officer that she was drunk. Again his Honour did not assess the different versions given by the parties or what effect this might have on the grandmother’s credit as to the extent of the mother’s drinking. The police allowed the mother to remove the children but the grandmother refused to allow the mother to take her car seats for the children and Mr L had to go and acquire new ones.
[14] Affidavit of Ms Scarle filed 3 February 2016 at [135].

The ex parte Recovery Order

It would be fair to say that the trial judge was concerned about the circumstances in which the Recovery Order was made. At [11] his Honour said:
11.I intercalate at this point that it was puzzling that reference was made to a location order. It is true that the grandmother did not know where the mother was living but she did have her telephone number and email address and an order could have been sought for service of the application via email or text message. The grandmother’s conduct in this respect was subject to stringent criticism at the final hearing by Mr Givney who appeared for the mother and I will discuss this later in this judgment. …

At [12] the trial judge said:
12.… As I have indicated he criticises the grandmother for proceeding ex parte when she had the means of informing the mother of the proceedings via email or text message. Those criticisms are well founded but fall well short of justifying a change in the care arrangements for the children. Also I am not convinced that she was the person who was in control of the litigation. I think it likely that she was guided by her lawyers in this respect.
With respect to his Honour, it seems to us that this finding was not open to him. His Honour asked the grandmother:[15]
Did your lawyer ask you whether you had any means of contacting your daughter to tell her that you had filed this application?---I didn’t know her address and I didn’t - - -
No, you knew her email?---Yes. Well, I didn’t – yes. No, I didn’t think of that.
Do you remember if your lawyer asked you if there was any way that your daughter could be informed about the proceedings?---I – I was looking at – I’m not sure.
Well, okay.
(Transcript of proceedings, 15 February 2016, p 45)
[15] Transcript, 15 February 2016, p 45.
With respect to his Honour, we think that evidence falls far short of finding that it was “likely she was guided by her lawyers in this respect”. We agree with his Honour that service could have been sought via email or text message and we do not think his Honour’s exculpation of the grandmother was open on the evidence.
Whilst we accept that the grandmother’s pursuit of an ex parte Recovery Order in circumstances where she would in fact have been able to contact the mother for service falls short of justifying a change of arrangements for the children three years later, it does form part of what counsel for the mother asserts is a pattern of behaviour and attitudes on the part of the grandmother towards the mother’s relationship with the children, to which his Honour did not give any, or adequate, attention.

Finding that the grandmother was the children’s primary carer

As mentioned at [12] above, the trial judge found at [74] that the grandmother was the children’s primary carer for a period prior to the mother taking the children in December 2012. His Honour also found that the grandmother had been their only carer since they were returned to her pursuant to the Recovery Order in January 2013.
The complaint is essentially that his Honour did not consider or analyse the evidence which led to this finding.
The uncontroversial evidence before his Honour was that the mother had, up until 6 December 2012, always been part of the household with the children, albeit that they had lived for periods with the grandmother. At [8] of the reasons for judgment, the trial judge observed that “for the majority of time they occupied the same residence and the grandmother was heavily involved in the care of the children.” At [9] the trial judge finds that the mother commenced a relationship with Mr L in March 2012 and visited him in Sydney each second weekend, leaving the children with the grandmother. In particular he finds that “[t]owards the end of the year her absences became greater and on occasion would stretch over a number of days.”
Leaving aside the period after 6 December 2012, to which we will return, this is the basis for his Honour’s finding at [74] that the grandmother was the children’s primary carer. With respect to his Honour, we do not consider that the evidentiary basis for that finding is apparent and even less so when it is noted that the grandmother was working full-time, which employment she had commenced in Town K in March 2012,[16] whereas the mother was not working. The main dispute around the extent of the children’s care was around the mother’s use of alcohol, which was in contention, and whilst it was open to his Honour to find that the grandmother was involved in the children’s care, we do not think the evidence was sufficient for him to establish that she was their primary carer, even had he attempted an analysis of it.
[16] Affidavit of Ms Ringwood dated 18 January 2016 at [104].
What occurred after 6 December 2012 was that the children went on a trip with the grandmother and Mr Z (between 6 and 9 December) and the mother remained with Mr L (on her case with the acquiescence of the grandmother), until 22 December. From that date, and until the Recovery Order was executed in February 2013, the children remained with the mother. Hence the only time the children had been in the sole care of the grandmother for any length of time was between 6 December and 22 December 2012 and the circumstances of those arrangements, which were themselves the subject of an unresolved dispute as to exactly how they came about, would not of itself amount to a finding that the grandmother was the primary carer of the children other than for that period.

The video of the mother’s time with the children

At least one of the videos in evidence was recorded when the children were taken to Town K Railway Station in accordance with orders made on 19 March 2013 for the children to spend time with the mother every Saturday from 10 am to 4 pm. On the second occasion, being 30 March 2013, the grandmother alleged that she drove the children to Town K Railway Station and that, as she was getting out of the car, she observed Mr L taking photos of them. She asserted that she saw his three children getting out of a car that only seated five people. She asserted she observed the mother place the children in the back seat with Mr L’s three children. On 14 April 2013 the grandmother photographed the number plate of Mr L’s car and says she told the mother that she could not put all the children in the car.
It transpired that Mr L had taken a video on his phone of what occurred on Saturday 30 March 2013. The video, which the court had seen, clearly indicated that the mother did not place her children into Mr L’s car but walked with them and his children down the street while he drove the car. Demonstrably, the evidence given by the grandmother was wrong and indeed the video indicated that the car in which she had left may well have been out of sight, so at worst her evidence was a fabrication and at best it was mistaken given that she could not have seen what actually happened.
When cross-examined, the grandmother did not resile from her evidence, notwithstanding the existence of the video. While she conceded during cross-examination that her car moved off before the other car moved,[17] she nevertheless maintained: “I still think that the people got in it. I saw the people get in it – the children get in, and whether he started taping after the fact I saw that – but I did move off and go, yes.”[18]
[17] Transcript, 16 February 2016, p 177-8.
[18] Transcript, 16 February 2016, p 178.
Counsel for the mother put to the grandmother:
… That paragraph was put in your affidavit as a further indication that [the mother] is an incompetent parent, wasn’t it?---I was worried about them putting more than one – like, the appropriate number in - - -
(Transcript of proceedings, 16 February 2016, p 178)
His Honour then intervened and discussed what he had observed in the video, leading to the following exchange with the grandmother:
HIS HONOUR: … But how do you reconcile the video with what you say?---I know what I saw, but I don’t know if the video is – got a – I don’t know.
Well, you – seriously, they got in the car and then got out?---Because he – at the end of it, he makes a comment of “This is” – you know, as though – I – I don’t know. I can’t make an assumption that it has been doctored, but I don’t know.
MR GIVNEY:   You’re worried it has been doctored?---I don’t know.
That’s your evidence?---I don’t know. I’m - - -
Is that your evidence? So you’re worried that it has been?---No, I – I was just saying what I saw.
HIS HONOUR:   No. No, but how it can it [sic] be doctored? I don’t - - -?---I’m just saying what I saw on that day was – because I remember having a conversation with my counsel around it, that – what should I do if they put more than those children in the car? And I was worried.
(Transcript of proceedings, 16 February 2016, pp 178–9)
Counsel for the mother asserted, as part of the overall thrust of the arguments, that in effect the grandmother’s evidence and unwillingness to make any concession that she might have been wrong, as well as her raising the prospect of the video being doctored, were matters going to the grandmother’s attitudes to the children’s relationship with their mother.
The advocate for the ICL submitted to his Honour that “the grandmother was not prepared to make what I would consider appropriate submissions about the evidence”.[19] She referred the trial judge to the comment about the video being doctored and his Honour intervened to say: “I don’t accept that it has been doctored.” The advocate responded:
MS KARAGIANNIS: Yes. Your Honour, nor do we, and in our submission, that would have been an appropriate concession for the grandmother to make.
HIS HONOUR: Yes.
(Transcript of proceedings, 17 March 2016, p 624)
[19] Transcript, 17 March 2016, p 624.
The attitude of the grandmother could be fairly seen to go to the reliability of her evidence when it comes to her allegations about the mother and also to a general attitude to the mother in relation to parenting and the grandmother’s capacity to support a relationship between the mother and the children. None of these matters were addressed by his Honour in the judgment.

The mother’s time with the children pursuant to the orders of 30 June 2015

As we have previously explained at [50], the orders that were initially made for time between the mother and the children following the execution of the Recovery Order were made on 19 March 2013. Those orders provided for telephone contact and for the mother to spend time with them from 10 am until 4 pm each Saturday, with the mother to collect the children from and return them to Town K Railway Station.
On 9 December 2013 the orders for time were varied and the mother was to spend time with the children for three hours each alternate Saturday or Sunday to be supervised by Agency P. Further orders were made to the effect that arrangements be put in place for longer term time supervised by Contact Centre C in Town N. Supervised time took place.
On 30 June 2015 further orders were made providing for, inter alia, time between the children and the mother. They provided that following completion of a further two months of supported time, it should move to unsupervised time, being each Saturday for four hours for a period of four weeks; thereafter each Saturday for six hours for a period of four weeks; and thereafter each Saturday from 10 am until 10 am on Sunday for a further four weeks.
The grandmother did not permit the unsupervised time to occur.
The mother’s unchallenged evidence[20] was that on 4 July 2015, being the first Saturday following receipt of the 30 June 2015 orders, she spent time with the children supported by Contact Centre C in City G. On 16 July 2015 the mother’s solicitors wrote to the grandmother’s solicitors seeking her consent for the children to commence spending unsupervised time with the mother immediately as she had already utilised the supported contact service at Contact Centre C for two months. The letter dated 16 July 2015 from the mother’s solicitors to the grandmother’s solicitors pointed out that:
As your client is aware, our client commenced supported contact at [Contact Centre C in City G] on 9 May 2015.
As of 9 July 2015, our client has utilised the “supported contact” service at [Contact Centre C] for the requisite 2 month period per paragraph 2 of the Orders dated 30 June 2015.
They went on to assert that the mother was then entitled to unsupervised time pursuant to the orders.
[20] Affidavit of Ms Scarle filed 3 February 2016 at [248] et seq.
On the following day, the grandmother’s solicitors emailed the mother’s solicitors, indicating that they were having difficulty interpreting the 30 June 2015 orders and that the children’s time with the mother on 18 July 2015 should take place at Contact Centre C in City G. On 25 July 2015 the mother went to Railway Station in Suburb D to receive the children and when the grandmother did not attend with the children, she sent a text message to the grandmother. She received no response.
On 1 August 2015 and 8 August 2015 the mother repeated this and received no reply. On 15 August 2015 the mother again attended at the Railway Station, in Suburb D, sent a text message to the grandmother and received no reply. However, on this occasion she was able to contact the grandmother by telephone and asked whether the boys were being brought to see her. She asserts that the grandmother said: “I don’t know why you’d be at [the Railway Station in Suburb D]” and that she didn’t know she was supposed to be there.[21] On 21 August 2015 the mother sent a text message to the grandmother in order to confirm that the children would be in attendance on 22 August 2015. She did not receive a reply. Nevertheless, the mother went to Railway Station in Suburb D on 22 August 2015 and the children were not there. She tried to call the grandmother and received no response.
[21] Affidavit of Ms Scarle filed 3 February 2016 at [258].
On 28 August 2015 the mother endeavoured to arrange time at Contact Centre C, to take place on 29 August 2015, but the grandmother could not be contacted. On M’s birthday, the mother attended Railway Station in Suburb D but the children were not made available. The same thing occurred on 5 September 2015. On 11 September 2015 the mother instructed her solicitors to write to the grandmother’s solicitors seeking confirmation that time would be facilitated on 12 September 2015. Their reply was that their “client fully supports a supervised visit at [Contact Centre C]”.
As a result the children did not see their mother between 19 July 2015 and late October 2015. Whilst maintaining that the orders clearly provided for her to spend unsupervised time with the children, in order to see them she rearranged with Contact Centre C in City G to recommence facilitation of supported time between herself and the children for two hours a fortnight commencing on

31 October 2015. Thereafter she had supported time with the children for two hours every fortnight.
The grandmother’s evidence in chief contained in her affidavit of 18 January 2016 at [441] was that: “In June 2015 Orders were made and their effect was that after two months supported time at [Contact Centre C, Town N] the children would spend unsupervised time with the mother” (emphasis added). She deposed, at [442] that:
After the orders were released, [the mother] cancelled the [Contact Centre C, City G] visits. Her solicitor wrote to my solicitor indicating that [the mother] had completed two months supported time and the time was to move to unsupervised. … [The mother] had not completed two months supported time with [Contact Centre C, Town N] and so I did not allow the children to spend unsupervised time with [the mother].
(emphasis added)
The grandmother was cross-examined by counsel for the mother in relation to this issue and acknowledged that the mother had two months supported time but not at Town N.[22] The following exchange took place between his Honour and the grandmother:
HIS HONOUR: Well, I’m not sure that – well, let’s clear that up. Is that true that the reason you did not provide unsupervised time was that the supervised or supported time didn’t happen at [Town N]; it happened somewhere else?---I didn’t understand the orders and there was – I also was worried about the children that the cycle of abuse would start again, that they would be questioned constantly.
Well, the orders are pretty clear when they talk about unsupervised contact and the changeovers to occur at [the Railway Station, Suburb D]; that’s pretty clear, isn’t it?---Yes.
It’s not going to be at a contact centre if the changeovers are going to be at [the Railway Station, Suburb D]?---No.
(Transcript of proceedings, 16 February 2016, p 151)
[22] Transcript, 16 February 2016, p 145.
Further exchanges took place and then finally his Honour said:[23]
HIS HONOUR: This is what I’m going to be – [Ms Ringwood], I will address you – this is what I think I’m going to be asked to conclude: is that you were determined that you weren’t going to follow court orders and you weren’t going to allow unsupervised contact and you used the excuse that the orders say [Town N] and in fact occurred at [City G], was it? Irrelevant distinction, but you used that irrelevant distinction as an excuse to say you weren’t bound to provide unsupervised contact. That’s, I think, what’s going to be put to me. Have you anything you want to say about that?---No. I didn’t understand the orders.
(Transcript of proceedings, 16 February 2016, p 152)
[23] Transcript, 16 February 2016, p 152.
Given the history of the matter, the orders themselves and the numerous occasions on which the mother waited at the Railway Station in Suburb D and communicated with the grandmother seeking clarification as to where the children were, it is inconceivable that the grandmother did not understand the orders. Indeed, her answer above that she was “worried about the children that the cycle of abuse would start again, that they would be questioned constantly” suggests that her reason for not making the children available was other than that she was confused. It also belies the grandmother’s claim that the mother’s alleged misuse of alcohol meant the children were unsafe in her care.
In our view this was, as counsel for the mother submitted, of some significance. First, the mother was having supervised time in circumstances where initially her time with the children had been unsupervised. Secondly, orders were made by consent that that time would move to unsupervised time. The grandmother thwarted that occurring and clearly from the evidence made no attempt to clarify or rectify anything about which she was confused. Thirdly, the grandmother prevented the mother from having any time with the children between July and October 2015. We agree with counsel for the mother that these were matters of some significance in relation to the responsibilities of parenting and the willingness to support a continuing relationship with the mother. Notwithstanding his Honour’s interventions in the cross-examination, and an indication that it would be submitted to be a relevant matter, he did not refer to this at all in the reasons for judgment.

The grandmother’s proposals for ongoing time

As a consequence of the matters referred to above, the mother was still having supervised time with the children at the time the hearing before his Honour commenced, despite the orders of 30 June 2015 that the mother’s time with the children progress to unsupervised time.
The final orders sought by the grandmother in her amended application dated 10 February 2016 sought that she have sole parental responsibility for the children and that they live with her. In relation to the time between the mother and the children, she sought an order “[t]hat from the date of these Orders the Children spend supervised time only with the Respondent Mother each alternate Saturday from 12.30 pm to 2.30 pm at the [Contact Centre C] at [City G] or another registered Supervised Contact Centre”. She sought in addition that an order be made requiring the mother to be the only person present during the periods of contact.
At the commencement of cross-examination, the grandmother was asked whether it was her view and application that the mother should only spend time with the children on a supervised basis and she confirmed it was and that she wished Contact Centre C or somebody similar to supervise. When asked by counsel for how long that should continue, she said: “Till [sic] [H] goes to high school”. She confirmed that he was in year 1 at school in 2016 and said this would amount to a further seven or eight years of supervised time.[24]
[24] Transcript, 15 February 2016, p 16-7.

Furthermore, there was no explanation of the grandmother’s refusal to accept (until the “eleventh hour”) that Mr Z could not be part of her household or that he might conceivably pose an unacceptable risk to the children and how this might reasonably be relevant to her care of the children.
One other matter remains in relation to his Honour’s determination that the case turned upon the fact that it would be unsettling for the children to be removed from the care of the grandmother and placed in the care of the mother and Mr L. His Honour relied upon the evidence of Dr B as to the concerns of the potential impact on the children of such a radical change in their care arrangements. However, the weight given to Dr B’s evidence has to be tempered to some degree by her views about the mother and

Mr L and the fact that Dr B discounted their allegations, a position which his Honour ultimately rejected. Furthermore, Dr B opined that if Mr Z was not convicted of the criminal offences “then he should return to live with the children.”[32] Dr B described Mr Z as appearing to be regarded by the children as “a central member of their family, someone that they trust and someone who they enjoy spending time with.”[33] Dr B opined:[34]
Further, I think that both these children need to have stability of housing, schooling and other activities as a priority. … I think [the children] have been significantly and deleteriously affected by the conflict to which they have been exposed over the last few years and any changes to these more fundamental aspects of their lives should be kept to a minimum.
Dr B also opined that the children should continue to have supervised time with the mother on an ongoing basis.[35] Given that his Honour also rejected that proposal, it is concerning that he nevertheless placed such weight on

Dr B’s views pertaining to the potential impact of a change in the children’s care arrangements.
[32] Report of Dr B dated 10 July 2015, p 71.
[33] Report of Dr B dated 10 July 2015, p 62.
[34] Report of Dr B dated 10 July 2015, p 71.
[35] Report of Dr B dated 10 July 2015, p 72.
It has to also be considered that Mr Z was, on all of the evidence before his Honour, an integral part of the grandmother’s household and that he was loved by the children, who were asking for him. The grandmother’s separation from Mr Z was itself a significant event for the children. His Honour ought to have taken into account, when weighing up the extent of the impact on the children of a change to the mother’s household, the significant change in their lives with the removal of Mr Z from the grandmother’s home, if they remained with her. His Honour did not consider this at all.
There are no findings by his Honour about the likely future of the grandmother’s household. Despite learning of the allegations about Mr Z, between 2013 and 2015 he was, at the behest of the grandmother, in and out of the children’s lives and the children believed they would continue to see him. Up until the third day of the hearing the grandmother saw a future with Mr Z and the children as part of their household. The grandmother’s attitude to parenting is a matter which his Honour appears entirely to have overlooked. Once the grandmother said that she would separate from Mr Z, his Honour seems to have found no need to consider this any further. The grandmother first received the affidavit of Ms W in December 2013. In spite of this, coupled with the allegations that were being made by the mother and

Mr L, the grandmother remained willing to have Mr Z in her home. Although his Honour expresses his concerns at [34], there is no discussion of the grandmother’s capacity to protect the children, either prior to the hearing or subsequently. There should have been.

Inadequacy of reasons

His Honour described his reasons as cursory. We find they are so and as a consequence, inadequate. In Rollings v Rollings (2009) 230 FLR 369, the

Full Court of this Court considered, inter alia, the principles relating to the delivery of reasons and the extent to which reasons are required. The Full Court said at [58]:
58.… the extent of the duty to give reasons depends on the nature of the particular decision, the circumstances in which it is made and the purpose that the reasons are intended to serve. In Beale
[v Government Insurance Office of NSW (1997) 48 NSWLR 430] Meagher JA, at 442 when dealing with “[t]he content of an adequate statement of reasons” referred with approval to what Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728 and what McHugh JA said in Soulemezis [v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247] at 281 and at 443 said:
It follows, that reasons need not necessarily be lengthy or elaborate: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. The scope of the reasons to be given is, as Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [(1983) 3 NSWLR 378], related “to the function to be served by the giving of reasons”. Accordingly, the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required.
In Bennett & Bennett (1991) FLC 92-191, the Full Court adopted the test for adequacy of reasons propounded by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8. In that case Gray J, who delivered the principal judgment, said at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In the present case, his Honour himself indicated that there was “a question mark in relation to the grandmother” and that he was satisfied that the mother was “well able to cater for the needs of the children including emotional and intellectual needs”. As we have indicated, the matter had many complexities, including significant and cogent allegations of sexual abuse, which required careful consideration. His Honour’s own admission that his reasons were cursory lends strong weight to a conclusion that “justice is not seen to have been done”.
Given the matters to which we have referred, the trial judge’s explanation of the basis of his decision – being essentially the time the children had lived with the grandmother and the fact that it would be unsettling for them to now be removed – does not, in our view, adequately explain why these factors outweighed all of the other matters to which we have referred. This was a case in which the nature of the decision required a careful analysis of the factors required under s 60CC(3) of the Act and particularly the likelihood that the mother’s relationship with the children would be fostered and promoted by the grandmother – a matter of some significant doubt having regard to the evidence.
As we pointed out to counsel for the grandmother in the course of submissions, the fact that the arguments both for and against each party’s case had to be searched for in the affidavits and the cross-examination, rather than these having been identified by his Honour in his judgment, suggests a failure to give adequate reasons.
We accept, as counsel for the grandmother submitted, that this is an appeal from a discretionary judgment. We are mindful of the constraints on this Court overturning a discretionary judgment (see House v The King (1936) 55 CLR 499; CDJ v VAJ (1998) 197 CLR 172). However, as we have said, we are not satisfied that his Honour took into account all the considerations required of him by the evidence. In relation to the matters he did consider, we could not with any confidence know what weight he gave to them or how they weighed in the balance.

Grounds 14 and 15

Grounds 14 and 15 consisted of assertions that the trial judge failed to provide procedural fairness to the mother by failing to canvass with her counsel a restrictive time regime during school terms (14); and that the trial judge’s finding that the mother’s time with the children during school term should be restricted was against the weight of the evidence and not in the interests of the children (15).
The orders made by his Honour in relation to the mother’s time with the children provide for time as follows:
(a)On the second weekend and sixth weekend of each school term. Having regard to rail timetables if travel is to be by rail, this contact is to be as near as possible from 10.00am Saturday to 4.00pm Sunday or Monday if a long weekend. If Easter falls outside school holidays and falls on a contact weekend contact is to commence on Good Friday and conclude on Easter Monday. If the mother wishes she may substitute the weekend of Mothers [sic] Day for the second weekend. The notice period in Order (5)(b) shall apply.
(b)On other weekends at times nominated by the mother provided that the contact is exercised in the [Town K] area. She is to notify the grandmother in writing during the preceding school holidays the weekend or weekends she proposes during the next term. The weekends she nominates must not result in a situation where on average they have contact more frequently than one weekend in two over the term. She may nominate the times and days of collection and return.
(c)During the July school holidays in 2016 from 11 July to 16 July. The provisions in relation to times are to be as per order 5(a).
(d)Thereafter for one half of school holidays being the first half of holidays falling or commencing in even numbered years and the second half of holidays falling or commencing in odd numbered years.
(emphasis added)
The orders went on to provide for telephone contact with the children each Wednesday and if Skype facilities were available this could be by Skype.
The orders provided that the parties were to agree as to the handover place but, in default of agreement, if travel was to be by rail it was to be at Central Station in Sydney or, if by car, at the Suburb P Railway Station or, if time was to be in Town K, at the Town K Railway Station.
Other orders were made to facilitate time.
It is true, as counsel for the mother submitted, that this regime was not proposed by any of the parties. The mother proposed that, if the children lived with her, the maternal grandmother have time each alternate weekend from

5 pm Friday to 6 pm Sunday together with holiday time, with changeovers to occur at the Railway Station in Suburb D.
The grandmother ultimately proposed that the children live with her and the mother have time from 10 am Saturday until 5 pm Sunday on alternate weekends as well as holiday time, with the mother to collect the children in, and return them to, the Town K area.
The ICL proposed that the children live with the grandmother and spend time with the mother from after school on Friday to 5 pm Sunday on alternate weekends together with school holiday time, but did not specify where the changeover was to take place. The mother was cross-examined and gave evidence that it was about four hours from Suburb X to Town K.[36]
[36] Transcript, 17 February 2016, p 274.
His Honour confirmed that Mr L had a motor vehicle and the mother said she did as well (transcript of proceedings, 17 February 2016, p 275).
The issue again arose when the advocate for the ICL cross-examined the mother about time. The mother said that if the children lived in Town K she would like every weekend. His Honour said:[37]
HIS HONOUR: Is there much point – look, I’m not going to order – if my order is that the children remain with the grandmother there’s not going to be contact every weekend. That’s really just impractical. It would be punishing – if they’re going to be at the mother’s place, it would be punishing driving. It’s – it’s just over three hours. I’ve had a look, and I got my associate to print-off some stuff ..... it’s just over three hours, without stops, from [Town K] to [Suburb X]. So it’s a bit of travelling, if it’s every weekend - - -
MS KARAGIANNIS: Okay.
HIS HONOUR: - - - for the children. I think would be come to be regarded as a chore.
…
HIS HONOUR: … And, certainly, it looks like, if one were to split the difference in – between – or find a halfway point. And a place that has CCTV. Perhaps there is a – there is some – a service station … It’s roughly halfway.
(Transcript of proceedings, 18 February 2016, p 318-5)
[37] Transcript, 18 February 2016, p 318.
There was discussion as to the route that would be taken and the desirability of having some form of recorded handovers to avoid further allegations, but no further discussion about the duration of the time itself. The orders made by his Honour were explained in the reasons at [77] – [79]:
77.The difficulty in relation to contact is logistical. I believe it would be too punishing for the children if they had to travel between [Town K] and the Central Coast once a fortnight. Fortnightly contact is the usual arrangement when there are not substantial distances involved. I am perfectly happy for the children to see their mother in the [Town K] area but I have restricted the weekends that they spend on the Central Coast.
78.I have made an order for the children to spend time with the mother for half of the school holidays. Given that to date there has been no holiday contact I have provided for a shorter time in the upcoming holidays.
79.I provided for handovers to be at place to be agreed by the parties and in default of agreement the [Town K] Railway Station if contact is to be in the [Town K] area and otherwise at the Sydney Central Railway Station. If travel is to be by car I understand that [Suburb P] is roughly half way and I have provided accordingly.
As counsel for the mother pointed out, order (5)(a) provides that the mother is only able to exercise time away from Town K on two weekends during each school term. None of the parties made this proposal.
It is well understood that the court is not bound by the proposals of the parties if some other arrangement is going to be in the best interests of the children (see U v U (2002) 211 CLR 238). However, procedural fairness must be afforded to the parties if the court is proposing to make an order which is different from that which either of them proposed (Bolitho & Cohen (2005) FLC 93-224; Goode & Goode (2006) FLC 93-286). Counsel submits, and we agree, that his Honour did not in any specific way raise this proposal.
Counsel points to the fact that the mother was not given an opportunity to explain the shortcomings of staying in Town K, including where she would stay and whether she would have to stay in a caravan park as she had previously done when she saw the children during 2013; the lack of availability of amenities usually associated with having one’s children in one’s home; and other features such as the weather. Counsel for the mother also pointed out that Mr Z would presumably be continuing to reside in the Town K area and the mother may well come into contact with him.
Counsel for the grandmother submitted that passages to which we have referred, indicating that the trial judge was concerned about the impact of travel between Town K and Suburb X even on an alternate weekend basis was “sufficient to put the mother on notice that his Honour would need to be persuaded that such an arrangement would be in the boys’ best interests”. Although his Honour’s comments reveal that he obviously had some reservations about travel, in our view those exchanges do not go as far as his Honour did in the orders he made. His Honour’s orders flew in the face of the proposals made by the three parties. Had his Honour raised this with the parties in a way that could have been addressed, there might have been another outcome. For example, it was possible that a three weekly regime rather than a fortnightly regime might have been teased out, or some other arrangement which gave the mother more weekends in Suburb X but still required her to do some travel to Town K. Because his Honour did not indicate what order he proposed to make, it being different from the proposals of the parties, the mother was denied the opportunity to canvass other options. In our view there is merit in grounds 14 and 15.

Conclusion

Counsel for the grandmother submitted that although, as his Honour himself acknowledged, the reasons were cursory, looking at the judgment globally and having regard to the matters raised the reasons were sufficient to deal with the essential issues and the asserted errors are merely errors in the exercise of discretion. We do not agree. We have found there were significant failures in the reasoning process and in dealing with factual controversies which directly related to parenting capacity and risk. The failure to weigh relevant considerations in ultimately determining whether or not the children should remain in the care of the grandmother is a fundamental failure to deal with the assessment of the children’s best interests.
Accordingly we find that there is merit in the appeal and it should be allowed. The circumstances are such that the matter must be remitted to the Federal Circuit Court for rehearing. We were informed in the course of submissions that at some stage an application had been made for the matter to be transferred to the Family Court and treated as a Magellan matter. Whilst that is not an order this Court can make, given the matters arising in this case, we suggest that serious consideration should be given to a transfer, whether or not the matter formally forms part of the Magellan list.

Cross-appeal

The cross-appeal filed by the ICL asserted error in the trial judge failing to make certain restraint orders as sought at first instance. The ICL sought orders in the appeal which were in the same terms as those sought at first instance:
(1)       That the mother be and is hereby restrained from:-
(a)Questioning the children regarding these proceedings or any allegations made in these proceedings; and/or
(b)Questioning the children regarding any allegations made in respect of proceedings before the [District] courts; and/or
(c)Presenting the children for any interview, assessment, examination or procedure without the written consent of the Applicant or in the event of an emergency;
(d)Recording the children’s conversations or comments or photographing any alleged injuries or marks upon the children other than in the case of a genuine emergency;
(e)Bringing the children into contact with, whether physically by telephone or other means of electronic communication, Mr [L] or his children; and
(f)Without admissions, using or being under the influence of any illegal drug or from consuming or drinking alcohol over and above the legal limit for driving whilst the children are in her care.
(2)       That the maternal Grandmother be and is hereby restrained from:-
(a)       Questioning the children[;]
(b)Questioning the children regarding any allegations made in respect of proceedings before the [District] courts; and/or
(c)Bringing the children into contact with, whether physically by regarding these proceedings or any allegations made in these proceedings; and/or telephone or other electronic means of communication, Mr [Z].
The mother, through her counsel, indicated that she would consent to the orders in paragraphs (1)(a), (b) and (f), or at least did not oppose the making of those orders.
Counsel for the grandmother indicated that his client was prepared to agree to orders being made in relation to paragraphs (2)(a), (b) and (c) of the

cross-appeal save that (2)(a) should be in the same form as the orders sought against the mother, so that it would restrain the grandmother from:
(a) Questioning the children regarding these proceedings or any allegations made in these proceedings.

Counsel for the grandmother joined with the ICL in seeking the orders in paragraphs (1)(a)–(f). Given our decision to allow the appeal and remit the matter for rehearing, it is not strictly necessary for us to deal with the

cross-appeal. However, it is worth considering the grounds of the cross-appeal:
1.The Trial Judge erred in failing to make the restraint orders set out in Order 10(e) in the Independent Children’s Lawyer’s short minute of order and as sought by the maternal grandmother namely that:-
(a)Trial Judge failed to give sufficient weight that exposure of [Mr L] to the children may be a risk and not in the children’s best interests as a result of his repeated requests to have the children interviewed and medically examined in respect of sexual abuse allegations.
(b)The Trial Judge failed to give sufficient weight that exposure of [Mr L] to the children may be a risk not in the children’s best interests as a result of his videoing and photographing of the children in respect of sexual abuse allegations.
(c)The Trial Judge failed to give sufficient weight to the evidence that the children were repeatedly questioned, interviewed by Police and medically examined in respect of sexual abuse allegations.
(d)The Trial Judge in finding [Ms W] as a witness of truth failed to consider the role of the mother and [Mr L] in corresponding with [Ms W] and the inconsistencies of the allegations made by [Ms W] as contained in tendered subpoenaed material.
(e)The Trial Judge failed to give adequate reasons.
2.The Trial Judge erred in failing to make the further restraint orders as set out in Orders 9 and 10 of the Independent Children’s Lawyer’s short minute of order namely that there was a failure to give adequate reasons.
3.The trial Judge failed to consider the orders proposed by the Independent Children’s Lawyer other than orders as to costs.
4.Such other grounds that may become evident when a transcript is available.
The underlying premises of the grounds seem to be that there is no unacceptable risk of abuse to the children from Mr Z and the evidence of Ms W ought to be disregarded; and that the role of the mother and Mr L in exposing and pursuing the allegations was not in the interests of the children.
It will be clear from what we have said in relation to the substantive appeal that we do not agree that findings on this basis were open to his Honour. On the contrary, a proper evaluation of the evidence would have revealed, prima facie at least, a significant risk to the children from Mr Z that required careful and detailed consideration.
As that failure on the part of his Honour has been accepted, and the grounds in the cross-appeal include an assertion that his Honour failed to give adequate reasons, the cross-appeal can also be said to have merit and we would allow the cross-appeal.

Remaking interim orders

Having found error, we propose to set aside the orders made by the trial judge, including those providing for time between the mother and the children. In the event we did not remake those orders on an interim basis, then the orders made on 30 June 2015 would again become operable. In in our view, this would be inappropriate in view of changes that have taken place. The interim arrangements for time between the mother and the children will need to be addressed as a matter of priority. Until the issue can be dealt with at first instance, we intend to make interim orders in the same terms as the orders the subject of the appeal. This will ensure the children are able to continue to spend some time with the mother pending a full consideration of what interim orders should be made pending the full rehearing.

Costs

Neither the mother, grandmother nor the ICL sought an order for costs if the appeal/cross-appeal were allowed, but the mother and grandmother sought certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) for the appeal if the appeal/cross-appeal were allowed on a question of law pursuant to s 9 and s 6 of the Costs Act, respectively. As the appeal and cross-appeal have succeeded on a question of law, we propose to grant such certificates for the mother and grandmother. Both also sought certificates pursuant to s 8 of the Costs Act in respect of a new trial and, having regard to the circumstances of this case, we consider it appropriate to so order.
No application was made by the ICL for costs certificates having regard to the nature of the employment of the ICL by the NSW Legal Aid Commission – see Yates & Yates (Independent Children’s Lawyer-Costs) [2012] FamCAFC 219.

I certify that the preceding two hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Thackray and Ryan JJ delivered on 31 March 2017.

Associate:

Date: 31 March 2017