Shields & Anor and Putney

[2016] FamCA 298

FAMILY COURT OF AUSTRALIA

SHIELDS AND ANOR & PUTNEY [2016] FamCA 298

FAMILY LAW CHILDREN – Best interests – Interim – With whom a child spends time – Where there are three children aged three, five and eight – Where the applicant mother seeks orders allowing her to spend regular time with the children supervised by the applicant father or the paternal grandparents – Where the applicant father supports the applicant mother’s application – Where the respondent maternal grandmother opposes the application – Where the biological father of the eldest child is not a party to the proceedings but has been given notice – Where the mother attempted to commit suicide approximately five months ago – Where previous orders had been made providing for the children to live with the respondent maternal grandmother – Where a final Apprehended Violence Order is in place against the mother preventing her from having contact with the children for 12 months – Consideration of s 68P of the Family Law Act 1975 (Cth) – Orders made for the applicant mother to spend time with the children supervised by the paternal grandmother or grandfather – Where the paternal grandparents are required to enter into an undertaking with respect to their supervision obligations – Where the Court noted that certain Orders made by this Court are inconsistent with certain Apprehended Violence Orders and that to the extent of that inconsistency, those Apprehended Violence Orders are invalid.

Family Law Act 1975 (Cth) s 60CC, 68P

APPLICANT MOTHER: Ms Shields

APPLICANT FATHER: Mr Oaks

RESPONDENT: Ms Putney

INDEPENDENT CHILDREN’S LAWYER: Mr Fernie (agent)

FILE NUMBER: SYC 8459 of 2015

DATE DELIVERED: 13 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 13 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT MOTHER: Mr Millar

SOLICITOR FOR THE APPLICANT MOTHER: Gordon & Barry Lawyers Pty Ltd

SOLICITOR FOR THE APPLICANT FATHER Mr Rogers of Barkus Doolan

RESPONDENT:	Mrs Putney
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Fernie

Orders

1. Orders and Notations are made in accordance with paragraphs 1, 2, 3, 4 and 6 of the orders sought at Annexure A to the Application in a Case filed by the mother on 28 March 2016, as set out hereunder, save that the first occasion of time pursuant to paragraph 3.1 will commence on Saturday 23 April 2016 at 10.00 am and thereafter in the alternate weeks the time will commence at 6.00 pm on Friday and conclude at 3.00 pm on a Sunday; and the first occasion time pursuant to paragraph 3.3 will be in the July school holidays of 2016:

THE COURT NOTES:

1.      The following definitions for the purpose of these Orders:

1.1.“Children” means B born … 2007, C born … 2011 and D born … 2012;

1.2.“First Applicant” means Mr Oaks born … 1979;

1.3.“Second Applicant” means Ms Shields born … 1979; and

1.4.“First Respondent” Ms Putney.

2.      The Second Applicant will serve a copy of all final and interim applications made by her on Mr H who is the biological father of the child B.

THE COURT ORDERS:

3.      Pending further Order, from the date of the making of these Orders the Children are to spend supervised time with the Second Applicant:

3.1.during the school term in week 1, from 6.00pm Friday to 3.00pm Sunday;

3.2.during the school term in week 2, from 11.00am Sunday to 3.00pm Sunday; and

3.3.for one half of school holiday periods, from after school on the last day to 3.00pm on the mid point of the holiday

4.      For the purpose of these Orders, the time the Children spend with the Second Applicant will be supervised by one of: the First Applicant, father, the paternal grandfather or paternal grandmother.

5.      …

6.      In the event of the Second Applicant refusing or failing to comply with any request made by the supervisor of her during the period of supervised time with the Children, the supervisor is to notify the Independent Children’s Lawyer of such failure and as and from such notification the Orders providing for the Children to spend time with the Second Applicant will stand suspended.

1. It is a condition of the orders for the mother’s time that within seven days the father and each of the paternal grandparents sign an undertaking in terms settled by the Independent Children’s Lawyer and provide a copy of the undertaking to the Independent Children’s Lawyer, being an undertaking:

(a)to comply with these orders;

(b)to ensure that at no time are the children or any of them left unsupervised in the care of the mother; and

(c)to immediately terminate the mother’s time with the children or any of them and to advise the other parties and the Independent Children’s Lawyer accordingly, in the event that the supervisor is concerned that the mother’s behaviour has or could have a seriously adverse impact on any of the children.

1. Notwithstanding the provisions of orders in terms of paragraph 3 the time of the father and the mother will be suspended during school term on the weekend which commences on the last Friday of each month.

1. Otherwise, until further order the children shall reside with the first respondent.

1. Unless the parties otherwise agree the orders for the mother’s time are to be given effect by the father causing the children to be collected at the commencement of each period of that time and returned to the maternal grandmother at the conclusion of each such period.

1. All of those orders are made until further and unless the parties; the mother, the father (Mr Oaks) and the maternal grandmother agree to the contrary.

1. There be a full family report prepared by Ms F and that the parents and the maternal grandmother attend and cause the attendance of the children at the time and date and place directed by Ms F.  That unless the parties otherwise agree the cost of the report shall be equally shared between the three parties and subject to Ms F’s convenience, that the interviews for that report be held as close as practicable to three months from the date of these orders.

1. The Independent Children’s Lawyer restore these proceedings to the list for trial directions not earlier than seven days after the release of Ms F’s report.

1. The Court requests that in instructing Ms F the Independent Children’s Lawyer bring to her attention the possibility of a need for a mental health assessment in relation to the mother and invite her recommendations in relation to such an assessment.

1. The Court notes that a family violence order was made on 15 December 2015 by the Local Court at N Town (the family violence order).  The order restrains the second applicant mother for the protection of the children.  The order is in force from 15 October 2015 for a period of 12 months and provides to the following effect:

   1.(a)     The mother must not assault, molest, harass, threaten or otherwise interfere with the children or a person with whom the children have a domestic relationship.

   (b)The mother must not engage in any other conduct that intimidates the children or a person with whom the children have a domestic relationship.

   (c)The mother must not stalk the children or a person with whom the children have a domestic relationship.

   ..

   4.     The mother must not go within 50 metres of the premises at which the children may from time to time reside or O Street, Suburb E.

   …

   7.     The mother must no approach or contact the children by any means whatsoever except through her legal representative.

   …

   9.     The mother must not approach or contact the school or other premises at which the children may from time to time attend for the purposes of education or child care or: Suburb L Public School or P Street Preschool.

2. The Court noted that Orders 1(3) and 7 made this day are inconsistent with orders 4, 7 and 9 of the family violence order.  Pursuant to s 68Q(1) to the extent of that inconsistency, orders 4, 7 and 9 of the family violence order are invalid.

1. The Court noted that given in the ages of the children it is not practicable to provide the explanations required by s 68P(2)(c)(iii) or s 68P(2)(d).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC8459 of 2015

Ms Shields

Applicant

And

Mr Oaks

Applicant

And

Ms Putney
Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I gave reasons for judgment in these proceedings on 12 January 2016 and I will not repeat all of the background facts contained in those reasons.  There are three children:  B, born in 2007; C, in 2011; D, in 2012.  The younger children have the same parents.  B’s father is Mr H who is the son of the second husband of the maternal grandmother.  His existence was identified on the first occasion the matter was before me and orders were made for notice to be given to him.  Under the rules of court he is a necessary party to the proceedings.  I am satisfied that he has notice of the proceedings. 

2. Mr H has filed two affidavits, the first affidavit relied on by the maternal grandmother and the second affidavit relied on by the mother.  They are in inconsistent terms.  That is not really explained except that I think Mr H says that he has changed his mind.  He was initially supportive of the application of the maternal grandmother.  Now, he favours the proposals of the mother.  He gives no indication that he wanted to attend today or take part in the proceedings.  He is a necessary party but he cannot be required to attend.  There was no attendance by him today or on his behalf.  In my view, it was appropriate that the matter be determined in his absence. 

3. The circumstances that were detailed in my judgment of 12 January 2016 were that until 10 December 2015 the children had been living with their mother in a house she on the Central Coast which she rented from her mother.  The father of the younger children had originally lived on the Central Coast and subsequently moved to the Northern Suburbs of Sydney.  In December he was living in a property at Suburb Q, being a separate property from his own parents, who feature in the case.  He is in paid employment.  He has said that he would have difficulty in assuming parental responsibility or taking custody of the children because of his paid employment.  The children were having some weekend time with him.

4. On 10 December 2015 the mother attempted to kill herself.  There is an issue in the case about the sincerity of the attempt.  In other words, the mother would characterise what happened as a cry for help and a psychiatrist to whom she has been referred for therapeutic intervention agrees.  There is reference to a suicidal gesture or some phrase like that.  There is evidence to suggest that the mother may have made an attempt to kill herself a couple of days before that.  There is in evidence an SMS message from the mother to that effect. 

5. There might be an explanation for that and I am sure there is but on behalf of the children, through the Independent Children’s Lawyer (“ICL”) and for the maternal grandmother there is a concern that there was more to the occasion of 10 December than just an emergency incident.  They have concern for the children’s safety.  The particular concerns arose on the day because the mother contacted the father and indicated that he was to come up to the Central Coast and take the children.  I understand that the oldest child was at school and the two younger children were asleep in the mother’s care at the time.

6. The evidence is that the mother connected a hose to her car’s exhaust and fed the hose into the car window.  A neighbour came by and disconnected the hose and the police were called.  There was a substantial struggle when the police sought to restrain the mother.  She was scheduled under the mental health legislation, taken to a hospital and released fairly quickly.  The police took action to secure an Apprehended Violence Order (“AVO”) against the mother.  There was an interim order and then a final order made preventing the mother from having contact with the children for 12 months.  Those events have coloured the whole proceedings. 

7. The mother’s view of the incident on 10 December 2015 and that of the psychiatrist to whom she has been referred, is that the mother’s children have been taken away inappropriately and that there are no consequences or issues arising out of that incident.

8. The mother gives evidence that her parents, the maternal grandmother and her first husband, separated when the mother was quite young, perhaps 12 years of age.  The mother left home at 16 and she experienced a level of homelessness.  Some period prior to the December incident the maternal grandmother gave the mother 90 days’ notice that she was required to vacate the property she was renting.

9. The suggestion in the mother’s case is that the notice to vacate brought back memories of homelessness for the mother and caused a temporary breakdown, that she was lost, upset and anxious but she is fine now. 

10. These events occurred just before Christmas and the parties have since engaged a social scientist to assist them and the Court on a reportable basis.  Ms F, a social worker at a practice called G Group, was commissioned to prepare an interim report.

11. As the maternal grandmother’s husband has identified, Ms F’s report is very much a conditional and preliminary report based on short interviews.  It necessarily accepts the representations of the adults and the statements from the children.  In relation to the youngest child that was “no” to every question.  And I am assisted by that report but it is worth noting that the emphasis that Ms F gives to the events of 10 December is not quite as relaxed as the view of the mother and her psychiatrist.  There is no opportunity today to cross-examine Ms F.  I do not know, for example, when she recites the history whether she is reciting that from only one person and if so, which person that is.

12. Ms F’s report deals with the mother’s suicide attempt.  Ms F records that the mother referred to having a major breakdown at the time.  That is not the emphasis that the mother puts on the situation now. 

13. There are aspects of advocacy in the report of the mother’s psychiatrist, Dr R.  She says that in her naivety, the mother was not able to prevent the making of an entirely inappropriate AVO.  The fact is that there is that order.  That order has been very influential because it reinforced the opinion of the maternal grandmother who has had the children from that day, that the children should be with her until they can go back to the mother.  If left undisturbed the AVO prevents that outcome for 12 months from the date it was made. 

14. This Court has power to make an order inconsistent with an AVO provided it gives an explanation as to why.  If it makes such an order then to the extent of the inconsistency, the AVO has no effect.  On one hand this seems like a fairly simple case whereby all three active parties would like the children restored to the mother when she is well.  Even on the mother’s case she concedes that there is not enough evidence today for that to occur. 

15. The presenting issues for the purposes of today arise from the mother’s application, supported by the father, for her to have time with the children each weekend supervised by the father and/or either of the paternal grandparents.  She asked for orders against herself, that in the event that one of the supervisors is concerned about particular matters, then the supervisor is to cause her time with the children to be terminated.  She asks for time each weekend in a pattern of virtually Friday afternoon to Sunday afternoon one weekend in the cycle and a day-only period on the intervening weekends.  She seeks for an order that half the school holidays be spent under that arrangement.  As I say, the father supports that approach, and I gather that the paternal grandparents also support the mother’s application.  The maternal grandmother – she does not agree to those orders.  For her part, she is not satisfied that that supervision would be rigorous enough.  She does not think that the proposals of the mother are satisfactory.

16. The ICL has similar concerns to those of the maternal grandmother.  The ICL says that supervision is a good idea and that the children should be seeing their mother.  However, the father is not considered to be an ideal supervisor.  They are the real issues for today. 

17. These decisions are made by reference to what is in the best interests of children.  The legislation has a cascading series of matters that are to be taken into account.  Parenting proceedings start with parental responsibility.

18. It is not in the best interests of the children that I make any particular order about parental responsibility today.  I do not know that an order will ultimately be made for the parents have equal shared responsibility.  I think perhaps I can be stronger about that.  It is highly unlikely that there will not be an order for equal shared parental responsibility.  The problem is that the triggering phrase in the legislation relates only to parents and I do not know that Mr H is an applicant for equal shared parental responsibility in relation to B, let alone a likely candidate for that role.

19. If there was to be an order that required something in the cascade of decisions, it would have to be to the exclusion of the father of the younger children, and I do not know that that is what the mother wants.  So all of that is a long way of saying I cannot say that a decision will be made that there will be equal shared responsibility for the children.  Therefore, I am not required to consider any particular pattern of living arrangement.  In any event, it would not be in the best interests of the children that I make an order for equal time between the parents, noting, again, that there are two fathers involved.  For the same reason I do not even know that it is in the best interests of the children to make an order for substantial and significant time.

20. Therefore, I am left at large in relation to the living arrangements that will be in the best interests of the children. Mr Millar for the father helpfully addressed his submissions to those issues. Like most urgent proceedings, these proceedings focus mainly on the primary considerations. Section 60CC of the Family Law Act 1975 (Cth) sets out what is in a child’s best interests – the sort of things that one would take into account. One only needs to take into account those that apply. The primary considerations are the benefit to a child of having a meaningful relationship with both parents and, secondly, the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

21. A meaningful relationship is one that is important and valuable.  Again, we have the problem of Mr H.  In my view a finding would be available that there is a meaningful relationship between B and her mother.  I do not know that it could be said that there is a meaningful relationship between B and her father.  Mr H says he pays some child support, but I do not know that he has had any significant time with B.  I see an indication of agreement to that proposition from the bar table.

22. As to the younger children, it must be common ground that there is a meaningful relationship between the children and their parents.  On any view, and despite some criticism expressed in the documents filed, the mother has been left on watch with these children for their whole life.  She has had a fractured relationship with her own mother.  The maternal grandmother says that she loves her daughter, but they are very critical of each other today.  As Ms F identifies, there was obviously an earlier period of estrangement between them.  Between those times there was a situation whereby the maternal grandmother rented her house to the mother, attended at the premises to clean the house and assist the older child with her homework.  I take it that the maternal grandmother considered that there was a meaningful relationship between the mother and the children during that period.

1. The primary considerations do not refer to the nature of the relationship between children and grandparents or anyone other than a parent.

2. The second consideration is the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.  On 10 December 2015 the police took the view that the children were at risk.  The two younger children were asleep while their mother tried to kill herself.  If the mother had succeeded, that would have had a devastating impact on the children.  It would have ruined their lives.  Coming back from that, if they had been exposed to the event itself, seen it, heard their mother being taken away by the police, seen her in distress, that too would have had a devastating impact on the children.

3. Children do not have a way of processing those things.  It is far beyond them.  The mother said to Ms F – that she has not exposed the children to any risk.  That is in dispute.  Now, as I said to the mother on a previous occasion, the fact that a person has made an attempt to kill herself, whether it was something that she intended to carry through on or had no intention of carrying through on, that is no impediment to her having a proper relationship with her children.

4. Substance abuse is not an impediment to a parent having a proper relationship with your children.  I am not saying there is substance abuse in this case.  Family violence is not such an impediment.  Having other mental health issues is not such an impediment.  The only issue in those circumstances is that the children have to be safe at all times.  So, I mean, if we were to exclude from active parenthood all the parents who have substance abuse issues, have been violent, have a mental health issue, we would have a pool of children that Mr Fernie would have to take home.  Who can say that they did not fall into any of those categories at some time?

5. What we expect – and I said this to the mother on the last occasion – all we can expect is, as the mother did on this day, that she first thinks about the children, makes the phone call to secure the children so they are protected and then focuses on her own needs.  That is all we can expect.  It did not work out quite as well as it might have on 10 December 2015.  The mother was not able to place the children in a safe environment before the incident and before she was taken away. 

6. It is an agreed fact that something more has to happen before the children can be restored to the mother.  The only dispute in the case, unless the application of the maternal grandmother changes, is as to when we can be satisfied that the children can be safely restored to the mother.  In any conflict between the need to restore a meaningful relationship with a parent and a child and the need for safety, safety comes first, says the legislation.  The court is to give greater weight to the second of the primary considerations.  There is some criticism by Dr R about the AVO system, which is a system that is managed under state legislation and involves action by police to protect people.

7. To my mind that system did its job well.  The complaint that Dr R makes is that there was no attention to the living arrangements for the children.  Well, that is true.  That is the system we have and that is why the parties have come to this Court.  The legislation provides that I can interfere with the violence order, because the state system is solely focused on protecting the children from harm.  They can be protected in various ways but I am responsible for issues about where they should live and about other considerations that are reflected in the legislation applied by this Court.  Those considerations include, what time they need with their parents and others and the other things that they need for their support.

8. Thus we are in heated agreement.  The children cannot be immediately restored to the mother.  On the mother’s own case, there are still some things to be done.  They will involve establishing a track record of stable behaviour by her, continued good mental health identified by her treating practitioner and presumably a satisfactory report from an independent expert.  The maternal grandmother would like to be satisfied that contact with the mother will be stable and safe for the children. 

9. The additional considerations start with any views expressed by the children and factors such as their maturity and level of understanding that the Court thinks are relevant to the weight to be given to their views.  The first thing to say is that in terms of safety, the views of the children are irrelevant.  If the children are in harm’s way because their mother is mentally unstable and might hurt herself and the children might be exposed to that, the fact that they wanted to attend would be irrelevant.  If, on the other hand, it is safe for the children to be with their mother and there are no safety issues, then the fact that they did not want to be with their mother would be largely irrelevant.  Therefore this is not a wishes case.  Otherwise B is of an age where one would start to take account of her views.  The younger children are not.  Perhaps that is just as well because S responded with “No” to every question from Ms F.  They would probably like their parents living together again and just be able to get on with life. 

10. As to the nature of the relationships of the children with their parents and others, including grandparents and other relatives, that is highly contested and not worth speculating about that.  The evidence reports comments critical of the mother and of her former partner Mr T made by the children to the maternal grandmother and to Ms F.  I think the mother might say, in relation to the disclosures to the maternal grandmother that they resulted from something said or unsaid in the maternal grandmother’s household.  I think the maternal grandmother knows that it would be an appalling thing to encourage a child to think ill of a parent.  I cannot make any findings about that.  There is not even any speculation about it in the documents.  The children seem disinclined to Mr T.  He was somebody introduced into their lives by the mother and somebody that she was keen to prosecute a relationship with.  The mother and Mr T are now estranged and there are AVO proceedings between them or affecting them.  In any event it is not suggested that Mr T is somebody who the children are going to have an ongoing relationship with.  

11. There is some evidence about the children acting out.  The problem is that we do not know if they are upset because they are missing somebody or because that person has not been able to meet their needs and they are anxious about that person.  That is going to take a bit more work.  Perhaps Ms F will be able to help with that issue.

12. Just stopping there and just dealing with the issue, Ms F says that telephone and electronic communication would be a good idea.  The maternal grandmother says it is too disruptive.  I am not going to order such communication.  There is no way of knowing at this stage.  The maternal grandmother says that the children have acted out and that their sleep has been affected quite seriously, after telephone communication.  I just have to accept that from her. 

13. There is a narrative in these proceedings that the maternal grandmother has ridden in from afar, has stolen these children from the mother and is torturing them.  As I said to her at the start of today, that is not my view.  She has turned her life upside down and has resumed parental responsibility when she is entitled to be getting on with being a grandmother.  She is somebody that was relied on by the mother, so at some point the mother thought it was safe and appropriate that the children have a relationship with her.  The mother says the children were spending time overnight at the home of the maternal grandmother at some time before all of this happened.  So it is possible that the maternal grandmother is not the devil incarnate and has not conspired in all of this.  If anybody is going to be critical of her, it will not be me.  Her sensibilities about what works and what does not work, are relevant. 

14. I would say to her - if at some time she thinks that it is feasible or manageable or appropriate for the children to have electronic communication with the mother, whether that is on some electronic device that somebody helps with or whatever – I think somebody mentioned FaceTime which, I understand is accessed by a telephone rather than a computer – well and good.  It would be terrific if that can be safely done. 

15. The conundrum I was presented with, was the mother seeing the children every weekend and the maternal grandmother not wanting telephone communication during the week.  That covers all seven days of the week.

16. Ms F says there should be regular and frequent communication.  I accept that to be the case, especially for younger children.  Three year olds do not have any idea of the passage of time.  A sleep is a huge time.  However, it is not possible to address every concern.  In a perfect world it would be ideal for there to be frequent telephone communication.  I am not going to order it but I will leave the maternal grandmother to put it in place if she thinks it is appropriate and practicable. 

17. As to the extent to which the parents have taken or failed to take an opportunity to participate in decision-making, spend time or communicate with the children.  There is Mr H and I will not repeat what I have said about him.  As to the other children, as I have said, the mother has been left on watch.  There is no suggestion she has not taken opportunities to spend time with her children.  There is no suggestion that she has not taken time to participate in decision-making about them.  There is no suggestion that she has not communicated with them.  I do not understand there to be any real criticism in relation to the father about those things. 

18. As to the extent to which the parents fulfilled their obligations as a parent.  There is criticism, as I say, in the documents about what has happened in the past.  The maternal grandmother says that the police had a recording made in 2014 of the mother shouting at B, screaming at her about not taking food from the household and so on.  The maternal grandmother said to me that she has not decided whether she will make an application for orders putting the children in her care for the indefinite future.  She has certainly included in her documents, evidence critical of the mother.  On the other hand, as I have observed, the children have been left with the mother.  No one has taken an action that caused the Department of Family and Community Services, the police, any compellable notifier or a civil court – this Court or the Federal Circuit Court – to interfere with the mother’s time with the children.  Putting the best light on that, that is because they have all thought that the mother was doing a good enough job. 

19. As to the likely effect of changes, that is not really relevant.  I am being asked to restore the mother’s contact with the children.  The immediate change would be from the mother having no time with the children.  The likely effect, hopefully, will be positive.  That restoration is a requirement that Ms F identified as having some urgency.  There is not really a dispute about that, provided it is balanced as to risks. 

20. As to the practical difficulty and expense of a child spending time or communicating with a parent.  The situation now is that the children are with the maternal grandmother and attending school on the Central Coast.  The mother has moved in with the father at Suburb Q in Sydney.  Even though they are not far apart in terms of kilometres, because of Sydney traffic, the distance is onerous.  We canvassed briefly, although we did not have any evidence of cost, the possibility of supervision being provided by an agency.  There is no evidence before me of an available agency and no evidence before me of the cost.  Usually, parties can circumvent any waiting lists by paying more money.  Supervision ranges from agencies that provide two or three operators and they are able to travel with the children and the person to supervision at a facility.  In the latter case, there can be a subsidised rate for people who are in receipt of Centrelink benefits.  In any event the cost of supervision can be significant.  There are other practical consequences of supervision.  Contact centres are not located on every street corner.  So there will be other issues about travel and so on. 

21. As to the capacity of the parents and others.  Although you would think so on the evidence, there is no immediate dispute about the capacity of the maternal grandmother.  No one is asking for an order in the short term that the children not live with her for most of the time.  The issue is in relation to the mother and to some extent, the father.  The main issue is about the mother’s mental health and about the father’s capacity, given his proposals, and the capacity of his parents to be vigilant about supervision.  The last mentioned issue is the obvious one.  If a person does not believe that something is a problem then that person will have difficulty in being vigilant about that situation.  To take a practical example, if the children were at the flat occupied by the father and the mother says, “Look, I will just take B out for a drive for an hour.”  If the father believes that the child will be safe with the mother, he might allow her to take the child away, despite an order preventing that removal.

22. As I said during the course of the submissions, it will have a devastating impact on these children if something happens to the mother.  Even if it there is only a small risk of something going wrong, that risk must be addressed.  One of the problems is, of course, these proceedings are stressful.  They are expensive and stressful.  AVO proceedings are stressful.  The travel associated with a split care arrangement with children is stressful.  Just to drive from Suburb Q to the Central Coast is stressful.  It is not as though the mother is in an environment without other stressors.  She might not be again afraid of homelessness but there will be a great deal of pressure on her.  On 10 December 2015 she had what she told Ms F was a major breakdown.  On reflection, she now thinks it was something less than that, but it sounded like a major breakdown.  It is not unremarkable that she was manhandled by the police and had to be scheduled.  They are not things that happen every day.  In my view the mother’s time with the children should be supervised and the supervisors need to be vigilant.

23. As to the maturity, sex, lifestyle and background of the children, that is contestable.  They have seen more of difficult relationships and other things than young children should see.  It is obvious there has been conflict between the mother and Mr T. 

24. The children told Ms F some things about their views about Mr T.  Those views are consistent with the mother’s case for protection against him.  Perhaps that is an area where she would concede that the maternal grandmother did not make up allegations and seek to poison the children’s minds about.  These children have had a less than ideal upbringing from that point of view and I do not mean to be critical of the mother.  They are the ages they are and the sex they are.  The younger a child is, the more at risk he or she is from being exposed to conflict and violence.

25. A child that cannot verbalise a concern is more at risk that one who can call for help or otherwise attract attention.  It must be very difficult for a child to process the sense of loss that would come from a mother trying to kill herself.  Otherwise the children have no particular characteristics. 

26. The attitude to the children and responsibilities of parenthood demonstrated by the parents.  I have said what I have said about Mr H.  As to the mother and father, absent the issues of December 2015, they have been left with the relationships that they have had and apparently have been doing a fair job. 

27. As to family violence, the police have referred to the incident in December under a provision of the juvenile crime or welfare legislation.  I gather there were issues of fear, at least, associated with the AVO proceedings that the mother has caused or been involved in the police instituting in relation to Mr T.  Of course, the December incident represented a substantial act of violence, sincere or not.

28. Any violence orders that apply.  There is an order in place and I have to interfere with it if I am to make the orders that have been sought.  Now, in that regard, Division 11 of Part VII of the Act provides for the possibility of inconsistencies between family violence orders and parenting orders.  The situation is that family violence orders override parenting orders, unless the civil Court makes a specific order that is inconsistent with a family violence order.  Then the family violence order is rendered nugatory to the extent of the inconsistency. 

29. The obligation on a Court is set out at s 68P of the Family Law Act 1975 (Cth), s 68P(2):

    The court must, to the extent to which an order or injunction provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child:

    (a)specify in the order or injunction that it is inconsistent with an existing family violence order; and

    (b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and

    (c)explain (or arrange for someone else to explain) the order or injunction to:

    (i)the applicant and respondent in the proceedings for the order or injunction; and

    (ii)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

    (iii)and the person protected by the family violence order (if that is not the applicant or respondent); and

    (d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:

    (i)the purpose of the order or injunction; and

    (ii)the obligations created by the order or injunction, including how the contact that it provides for is to take place; and

    (iii)the consequences that may follow if a person fails to comply with the order or injunction; and

    (iv)the court’s reasons for making an order or injunction that is inconsistent with a family violence order; and

    (v)the circumstances in which a person may apply for variation or revocation of the order or injunction.

30. Copies of the orders are to be sent to various people.  In my view the explanation has been given already.  The AVO system has had some press over the last 12 months and is a system focused on safety and only on safety.  That explains why orders are made without any real opportunity or need to test the allegations, because if the risk is great enough, then an order will be made to protect against a risk.  That system does not address the other needs of children affected by such an order.

31. The purpose of the order in this instance was to protect the children from the mother being destabilised and acting in a way which would, irrespective of its impact on her, have a devastating impact on the children.  Like the mother, the father has been trusted by the community and by the mother and by the maternal grandmother with unsupervised overnight time with the children.  He is not a person who we would assume wants ill for the children, who does not care for them.  He is obviously the person who the mother wanted to step in on the day but she could not wait until he arrived.  I have no doubt that he is a loving father, that he wants nothing but the best for his children.

32. The question is, is the protection that the father and his parents offer, sufficient.  They have sworn affidavits indicating a willingness to undertake this role.  I have indicated that I will require that they execute an undertaking, which is a promise to the Court, that refers to them the terms of the orders that the mother asks me to put in place:  that they suspend her time with the children in certain circumstances.  It is not insignificant that somebody would make a promise to the Court.  If they make a promise to the Court, it will be explained to them that a breach of that obligation is a contempt of Court.  Now, if we get to that, something has gone horribly wrong with the orders and the fact that it is a breach of an undertaking will be the least of our worries.  

1. For my part, balancing the risks, it seems to me that it is necessary that there be a restoration of time between the primary caregiver, the primary attachment figure no doubt for these children – the mother, and the children.  The only question relates to accommodating the risks which are expressed starkly in the AVO that has been made.

2. In my view, notwithstanding the attitudes described in her affidavits, the mother’s application reflects an appreciation of the issues involved. 

3. I formally note that orders made in terms of paragraph 3 of the orders sought by the mother in her Application in a Case are inconsistent with the order made on 15 December 2015 at the Local Court at N Town.  To the extent of the inconsistency, which would be orders 4, 7 and 9, the orders of 15 December are nugatory and have no effect. 

4. The orders I have made in relation to a report and so effectively expedite the proceedings to a substantial extent.  That said, if there is a change in the maternal grandmother’s application, that will delay the matter.  That is something that must remain with the maternal grandmother.  I have indicated to her that the rules of Court provide for her to amend her claim although I do not think there is a formal document from her yet indicating what orders she wants on a final basis. 

I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 13 April 2016.

Associate: 

Date:  4 May 2016