Spence & Garland & Ors

[2018] FamCA 1097

FAMILY COURT OF AUSTRALIA

SPENCE & GARLAND AND ORS [2018] FamCA 1097

FAMILY LAW – CHILDREN – RESIDENCE – where there are competing applications between family members for parenting orders in respect of three children – where the eldest child is ordered to live with the mother – where there are no orders for the eldest child to spend time with the paternal family - where the middle and youngest children are ordered to live with the paternal grandparents – where there are orders for the middle child to spend significant and substantial time with the mother  – where the youngest child spends short periods of time with the mother - where the parties have been in continual litigation since 2007 – where the paternal grandparents have been significantly involved in the children’s lives and the proceedings for a number of years – where litigation has become entrenched in the family dynamics and where the tone of parenting proposals filed by the parties is punitive towards adults rather than child focused - where the issue of non-compliance with orders by all parties is at the heart of the litigation – where the Department of Family and Community Services intervened within the proceedings – where the Department of Family and Community Services was assigned sole parental responsibility for one of the children during the proceedings - where the mother and father both have partners that pose risk factors to the children – where the father and his new partner have two children who are currently in foster care - where a separation of siblings occurs – where the subject children have step-siblings in both the mother and father’s household – where there is a need to make orders that provide a level of stability for the children – where orders are made in the best interests of the children

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – where the mother is given sole parental responsibility for the eldest child – where the paternal grandparents are given sole responsibility for the middle and youngest child – where the party with whom the child is living should be given parental responsibility - where there is such hostility between the parties that they are incapable of discussing issues relating to the children with one another

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – where there have been two previous sets of final orders – where this is the third set of final parenting orders being made in the history of the proceedings - where proceedings were commenced in the Federal Circuit Court of Australia and transferred to the Family Court of Australia – where there were recovery orders made in the Federal Circuit Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Spence

FIRST RESPONDENT:	Mr Garland
SECOND RESPONDENT:	Ms Garland
THIRD RESPONDENT:	Mr A Garland
INTERVENER:	Department of Family & Community Services

INDEPENDENT CHILDREN’S LAWYER: The Family Law Firm

FILE NUMBER: NCC 1194 of 2007

DATE DELIVERED: 19 December 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 23-25 and 28-29 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Allen

SOLICITOR FOR THE APPLICANT: Toronto Legal

FIRST RESPONDENT: Representing himself

COUNSEL FOR THE SECOND AND THIRD RESPONDENT:

SOLICITOR FOR THE SECOND AND THIRD RESPONDENT:

Mr Kelly

Hepmac Lawyers

SOLICITOR FOR THE INTERVENER: Department of Family & Community Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: The Family Law Firm

Orders

1. That all prior parenting orders made in this Court and the Federal Circuit Court  in relation to X born … 2003 (“X”), Y born … 2004 (“Y”) and Z born … 2005 (“Z”), together known as “the children” are discharged.

X

1. X shall live with the mother.

2. The mother shall have sole parental responsibility for X.

3. X shall spend time, if any, and communicate with the father and the paternal grandparents, if at all, as agreed between the mother, the father and the paternal grandparents.

Y

1. Y shall live with the paternal grandparents.

2. The paternal grandparents shall have sole parental responsibility for Y.

3. At any time a long term decision is to be made about Y, the paternal grandparents are to notify the mother in writing (which includes email and text) of the decision proposed by them, seek and consider the views of the mother if expressed within a reasonable time and notify the mother of the decision then taken.

4. Y shall spend time and communicate with the father as agreed between the paternal grandparents and the father.

5. Y shall spend time with the mother as follows, unless otherwise agreed between the mother and the paternal grandparents:

During School Term

9.1Each alternate weekend from after school Friday to 6.00 pm Sunday commencing on the first weekend of each school term;

Holidays and special days

9.2For one week of each school holiday period, commencing at 10.00 am on the first Saturday and concluding at 6.00 pm on the second Saturday of each term holiday;

9.3For two weeks of the Christmas summer holiday period:

9.3.1For the first two weeks (including Christmas Day ) in odd numbered years, starting 10.00 am on the first Saturday commencing December 2019; and the last two weeks in even numbered years, commencing January 2018, concluding at 6.00 pm on the last Saturday before Term One of the next  school year commences;

9.4On Christmas Day in  December 2018 from 12.00 midday to 6.00 pm;

9.5On Christmas Day thereafter from 12.00 pm Christmas day to 12.00 pm Boxing Day in each alternate year commencing December 2020;

9.6On Mother’s Day each year, from 10.00 am to 6.00 pm if Y is not already spending time during that weekend.

Z

1. Z shall live with the paternal grandparents.

2. The paternal grandparents shall have sole parental responsibility for Z.

3. At any time a long term decision is to be made about Z, the paternal grandparents are to notify the mother in writing (which includes email and text) of the decision proposed by them, seek and consider the views of the mother if expressed within a reasonable time, and notify the mother of the decision then taken.

4. Z shall spend time with and communicate with the father as agreed between the paternal grandparents and the father.

5. Z shall spend time and communicate with the mother, unless otherwise agreed between the mother and the paternal grandparents, as follows:

During Term Time

14.1On each alternate Saturday from 10.00 am until 6.00 pm (to coincide with Y spending time with the mother);

Holidays and special days

14.2On the first weekend of each term holiday period from 10.00 am Saturday to 6.00 pm Sunday;

14.3For the first whole weekend in the Christmas summer holiday period commencing in December 2019 and the last weekend of that holiday period in each alternate year commencing January 2019;

14.4On Mother’s Day from 10.00 am to 6.00 pm each year;

14.5On Christmas Day from 12.00 pm to 6.00 pm each year (if Z is not already spending time with the mother) commencing in December 2018.

Changeovers

1. All changeovers not from school shall take place at McDonalds, Suburb B.

2. The father is restrained from attending and being in the vicinity of changeovers and shall use his best efforts to ensure that his partner Ms C is likewise not present at changeovers.

3. That the mother shall use her best efforts to ensure that her partner Mr Spence is not present at, or in the vicinity of, changeovers.

Specific Issues

1. The intervener will provide Mr Spence with a referral to a family service within 14 days of these orders.

2. That all parties will ensure that Y and Z are not left in the sole care of a person under the age of 18 years.

3. The paternal grandparents shall:

   20.1Ensure that the name, address and contact details of each of the parents is provided to the schools which Y and Z attend;

   20.2Authorise the principal of the schools which Y and Z attend to provide to each of the parents, at his and her own cost if any, copies of all documents relating to the progress and welfare of each of the children at school, including but not limited to, school reports, newsletters and applications for school photographs;

   20.3That each party shall urgently advise the others if a child in that party’s care suffers an accident, serious illness or medical emergency.

Restraints

1. The father is restrained from doing all acts and things that would bring him into contact with Mr Spence.

2. The father and paternal grandparents are restrained from allowing the father’s partner, Ms C, from being in the presence of the children unsupervised and the supervisor is to be the father or either of the paternal grandparents.

3. The mother is restrained from allowing her partner, Mr Spence, from being in the presence of Y and Z unsupervised, and the supervisor is to be the mother.

4. All parties are restrained from using corporal punishment on the children and shall ensure third parties are similarly restrained.

Independent Children’s Lawyer (“ICL”)

1. The ICL shall:

   (a)Provide a copy of these orders to the principal of the schools which each of the three children attends.

   (b)At a time mutually convenient to the ICL and the parties, explain the orders to each of the children and answer any relevant question they may have.

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 Spence & Garland and Ors 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.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1194/2007

Ms Spence

Applicant

And

Mr Garland

First Respondent

And

Mr A Garland

Third Respondent

And

The Department of Family and Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders between both of the two parents, the paternal grandparents, and the Secretary of the Department of Family & Community Services (“the Department”).

2. There are three subject children, at date of trial they were aged not quite 15, 13 and 12. All three children are at high school. The eldest child X lives with the mother, the middle child Y is presently living with the paternal grandparents, and the youngest child Z lives with the father.

3. The parties separated in 2007.

4. There have been very many applications and several sets of orders, mostly by consent, made in the eleven year period since separation. Court events are part of the life of this family.

The Parties

The mother

1. The applicant is Ms Spence (“the mother”). The mother is aged 35 years. She is not in paid employment. She is the carer for her partner who has a disability pension. The mother lives in D Town south of E Town. Her household consists of herself, her husband of nine years Mr Spence aged 29 and the child of their marriage, W, a girl aged six years and the eldest subject child, X.

The father

1. The first respondent is Mr Garland (“the father”). The father is aged 37 years. His occupation is as carer for his de facto partner Ms C, aged 32. The father receives a carer’s pension. The father has lived in a de facto relationship with Ms C for approximately eight years.

2. The household of the father consists of himself and Ms C and the youngest subject child, Z.

3. The father lives in Suburb B, a suburb of E Town.

The paternal grandparents

1. The second and third respondents are Ms Garland aged 59 and her husband Mr A Garland aged 60 (“the paternal grandparents”).

2. Both grandparents are in paid employment.

3. The paternal grandmother works with children aged 0-12 years in Suburb F.

4. The paternal grandfather also works with children and also runs a business working in it two days per week.

5. The paternal grandparents live in Suburb G, a suburb of H Town. Their household presently consists of themselves and the middle subject child, Y.

6. The paternal grandparents have been involved with the children throughout their lives and have been parties to proceedings with equal shared parental responsibility for many years.

Short History of Relevant Events

1. The mother and father began living together in August 2002. They were then aged 21 and 19 years respectively. The three subject children were born in the next three consecutive years; 2003, 2004 and 2005.

2. Early in 2007 the parents separated. The children were aged three, two and one years of age. They remained living with the mother.

3. The first application to a court was filed by the mother two months later. The application was to the Federal Circuit Court (“FCC”) for a recovery order.

Interim Orders - 4 May 2007

1. On 4 May 2007 the first set, of many sets of orders which followed over the years, was made. Interim orders for equal shared parental responsibility for the parents, residence with the mother and time with the father four nights per fortnight in two blocks.

2. On 16 July 2008 the father filed an Application in a Case asking for his parents to be joined as parties. He proposed defined periods of time for the children with them.

3. Having now heard all the evidence I conclude that the father was, by his application looking for authority to allow his parents to assist him. He was struggling with caring for all three children at once, for periods of two nights.

4. The parties were directed to Family Dispute Resolution and later for a Family Report.

Final Orders - 18 July 2008

1. The matter was set down for hearing on 18 July 2008. On that day the paternal grandparents were joined as parties.

2. Orders were made by consent obviating the need for a trial. The orders provided for the mother and father to equally share parental responsibility, for the children to live with the mother and to spend time with the father and his parents as defined. How the time was divided between the three members of the paternal family was left to their private agreement.

3. At that time the parties believed they had resolved the parenting dispute on a final basis. I conclude that the father and his parents had confidence in the mother as the main carer. The mother was hopeful, but not over confident, that the father would engage with the children and spend the time allocated to him by the orders.

New relationship for Mother - 2009

1. In 2009 the mother began a new relationship with her current partner Mr Spence, born in 1989. He was aged 20, was single and had no children of his own. Mr Spence had a long history of angry, aggressive behaviour and a tendency to both be impulsive and reactive to events. He has an intellectual disability and receives a disability pension.

2. Mr Spence willingly took on the role of step-father. He had no knowledge of what would be involved in the care and supervision of three young children. He was himself still adversely affected by events in his own childhood.

3. The paternal grandparents were probably in a state of trepidation over the impact of Mr Spence on the lives of their grandchildren.

4. Early in 2012 the mother gave birth to the child, now six, of her marriage to Mr Spence.

New relationship for Father - 2010

1. In mid-2010 the father began a new relationship with his current partner Ms C.

2. The father and Ms C have one child of their relationship, a boy aged, at trial, six years named V. V lives with a foster carer, Ms K.

3. Ms C has four older children aged between 12 and seven years, all of whom live in foster care. The elder three live with members of their paternal family. The youngest child, J, is in foster care with V’s carer Ms K.

4. The father and Ms C have contact with their child V and Ms C’s youngest child J at least one day per month, supervised by the paternal grandparents.

Final Orders – September 2014

1. On 9 September 2014 final orders were once again made by consent. Again orders provided for the children to live with the mother and spend substantial and significant time with the father and his parents.

2. Despite this apparent resolution there were then further applications, allegations by the grandparents of contravention and a recovery application by the father. Ultimately these were withdrawn and dismissed.

3. It is apparent the parties turned to the Court first, not as a last resort.

Current proceedings begin - 2016

1. This round of litigation commenced on 16 March 2016 in the FCC with an application by the mother.

2. The orders sought were for the children to live with the mother and spend supervised time in a contact centre with the father and his parents.

3. The mother was no doubt frustrated by a perceived lack of cooperation by the paternal family when she formulated that proposal but it was inflammatory. The whole parenting dispute flared again.

4. The father filed a Response and Notice of Risk raising allegations which, if true, would amount to criminal assaults and abuse of the children by the mother and her partner.

5. Likewise, the paternal grandparents joined the fray, proposing that the children live with them or the father and not be brought in contact with the mother’s partner.

6. The tone of all proposals was punitive towards adults rather than child focused.

Interim Orders - August 2016

1. On 1 August 2016 interim orders were made by consent.

2. The parties agreed that Z would live with his father and the two girls would live with their mother.

3. The parties also agreed to restraints which were onerous and unrealistic. When the children spent time with the other parent they were not to be brought in contact with that parent’s partner.

4. Within two months the orders had broken down. The mother applied for a recovery order. The father applied for residence for the children with him and supervised time only for the mother.

5. The Court was being used as a forum for a display of mutual disapproval and hostility. The instability for the children was probably well understood by all parties but no one was willing to step back; each blamed one or more of the others.

6. On 1 April 2017 the child Y ran away. Police were involved and the child was taken to hospital. Y had stated that she wanted to kill herself. It is reasonable to infer that she would have benefitted from respectful communication within her extended family and a protective attitude being taken towards her.

7. That is not what in full happened. Blame and accusation continued unabated. The father sought an Apprehended Violence Order (“AVO”) for his protection from the mother and her partner. The mother filed another application as did the paternal grandparents.

8. On 12 April 2017 a recovery order was made in the FCC for Y to be returned to the home of the mother.

9. In July 2017 the Department intervened in the proceedings.

10. On 11 July 2017 protective orders were made for the welfare of Y. Time with her father was suspended. Sole parental responsibility was assigned to the Department.

Transfer to Family Court

1. On 3 October 2017 the proceedings were transferred from the FCC to this Court.

2. The Department assessed the placement of Y with the paternal grandparents as suitable.

3. On 15 November 2017 trial directions were made.

4. The matter came before me for trial on 23 May 2018 and was concluded within the six days allocated for it.

Applications

The Applicant mother

1. The mother proposed in her Initiating Application the following orders:

   1.That the children live with her;

   2.That the children see the father and paternal grandparents supervised at a contact centre with any unsupervised time to be determined by the Court.

2. There was no proposal in relation to parental responsibility.

3. On the first day of trial the mother revealed a revised position which was included in her Case Outline document.[1] The orders she proposed were as follows:

   1.That the children live with her;

   2.That the mother have sole parental responsibility;

   3.That the children spend time with the father as agreed but failing agreement otherwise on alternate weekends from Friday 5.00 pm to Sunday 5.00 pm, one week of each school holiday period and for special times.

   [1] Exhibit 2

1. Restraints were proposed on the children spending time with the father’s partner and on the father’s time being exercised by the paternal grandparents. It is apparent that the mother, through her revised proposal, was still trying to exert pressure on the father to spend more time with the children and to take responsibility as a parent.

2. There were various other specific issues, restraints and provision for communication.

The First Respondent father

1. The father proposed orders on 5 April 2016 in his Response. His orders were revised by a Minute in his Case Outline document.[2] The father proposes orders in the alternative as follows, either:

   1.That the children live with the paternal grandparents;

   2.That the children see the father as agreed between himself and his parents but in general terms in alternate weekends, part of each school holiday and on special occasions;

   3.That the two elder children, the girls, spend time with their mother each alternate weekend and part of each school holiday;

   OR in the alternate:

   1.That the children live with the father and spend time with the paternal grandparents in the pattern proposed by the father for himself.

   [2] Exhibit 3

2. There was no provision made for the youngest child to spend time with the mother.

3. It is equally apparent that the father was openly conceding that his preference was for the children to live with the paternal grandparents and for them to be responsible for their care and supervision.

The Second and Third Respondent paternal grandparents

1. The paternal grandparents proposed orders on 19 April 2016 in their Response. Their orders were revised as follows in their Case Outline document.[3]

   [3] Exhibit 4

2. They proposed orders as follows:

   1.That the father and themselves have equal shared parental responsibility for the children;

   2.That the children live with the paternal grandparents;

   3.That the children spend time with the father as agreed between him and themselves but generally time at weekends during holidays and on special occasions;

   4.That the children spend time with the mother on alternate Saturdays, 9.00 am to 5.00 pm on four occasions, and thereafter each third weekend from 10.00 am Saturday to 5.00 pm Sunday, on Mother’s Day and other special occasions. The condition to that time was that all time occur in the home of the maternal grandmother. There was no evidence to suggest that the maternal grandmother was willing and able to take on that role;

   5.A restraint on the children being brought into contact with the mother’s partner;

   6.A restraint on the mother using corporal punishment with the children;

   7.The mother to complete a PPP parenting course for children with disabilities.

   8.Apparent from this proposal was that the paternal grandparents took the view that the children required to be supervised at all times when they were in the care of the mother.

The Intervener

1. The intervener proposed that:

   1.If a finding can be made that no child protection concerns are identified by the Court, then the children should live with the mother and spend time with the father and paternal grandparents;

   OR

   2.If a finding of unacceptable risk in the household of the mother is made and there is no equivalent finding about the household of the father, then the parents to have equal shared parental responsibility and the children to live with the father;

   OR

   3.If there is an unacceptable risk in the care of both parents, then the paternal grandparents to have parental responsibility and all children live with them;

   OR

   4.If all parties are found to represent unacceptable risk, the Minister to have sole parental responsibility to age 18, by inference for the children to live as directed by the Minister.

Issues

Is the household of the mother safe for all, or any of the children to live in?

1. I have concluded that the mother is a loving mother who does not represent a risk to the children. The dynamics of her household do create a risk for the two younger children. Their interaction with the mother’s partner has been volatile. Mr Spence has not well understood his role as step father being secondary to that of the mother. X is doing well in the care of the mother and there is no evidence to suggest that W is not likewise developing well.

Is the household of the father safe for all, or any of the children to live in?

1. The father is a loving father. He is immature and lacks the capacity to meet the needs of all the children at one time. The father’s partner has deficits in her ability to meet the needs of children. Z has been comfortable in the household of the father where very little is expected of him.

Is the household of the paternal grandparents safe for all, or any of the children to live in?

1. The paternal grandparents love the children. Their household is safe for children; their health, homework and overall welfare will be attended to. The paternal grandparents have been focused on “rescuing” the children from harm. They may have overlooked the emotional harm arising from separation from parents. They are more experienced as parents but ideally the children should be living with one of their parents. To some extent the paternal grandparents have undermined the relationship of the children with their parents by being warmly supportive of complaints about them.

What are the expressed views of the children?

1. Of course all the children would prefer to live with a parent; Z wants to live with his father and not with his mother and Mr Spence, Y wants to live with her mother subject to a condition that cannot be met, that Mr Spence is not there. X has never left the care of her mother, has no difficulty with Mr Spence, and is content.

The Trial

1. At the mid-point of the first day of trial a suggestion was made that there was insufficient time for the case to be heard within six days.

2. The solicitor for the Department had attempted to engage all parties in the formation of a trial plan and received no response from any other party.

3. The lawyers were directed to prepare a trial plan in order to complete the matter within the allocated number of days. The opportunity was given to any party who wished to make the application to apply for adjournment. None did.

4. A trial plan was handed up at the commencement of the second day on the basis that parties would be held to what had been formulated.

5. The trial concluded within the allocated number of days.

The Parties and Partners

The mother

1. The mother stood up to a challenging, but mostly unnecessary, cross-examination well.

2. Over the course of four hours of cross-examination, counsel for the paternal grandparents focused largely on discrediting the mother. Counsel cross-examined extensively on the entitlements of both the mother and her partner to a variety of Centrelink benefits.

3. I formed the conclusion that the mother has felt overwhelmed at times by the past involvement of the paternal grandparents in both her life and in the care of the children although she has been grateful for their help. The mother has done her best to keep the children together.

4. Z moved to live with his father in March 2016 and has remained living there. It was not the mother’s intention that that arrangement would become permanent but it did. The mother’s intention was to engage the father in greater involvement in the upbringing of the children.

5. At date of trial Y had been living with the paternal grandparents for a period of about three months. Although the mother formally consented to Y staying with the paternal grandparents after she had run away in 2017, it was not the mother’s intention that Y move permanently out of her household.

6. X has not been seeing her father and paternal grandparents in accordance with current orders and the mother was clear to say that she would not force X to go if she did not want to.

7. This is an issue at the heart of why the parties have been back to Court on so many occasions; non-compliance with orders is the theme within these proceedings.

8. I conclude that the mother over the years after separation made efforts to encourage or shame the father into becoming more involved in the lives of the children. She also unsurprisingly wanted some respite from caring for three children so close together in age. Her approach has misfired in a way she had not anticipated.

9. All of the children have learned how to get around a parent who is blocking what they want to do. For instance, when the mother forced Z to have a shower when he had been at the beach and was covered in sand, the child resisted fiercely. The mother contacted the father and asked him to have Z for a while. The father immediately took the child to the police and registered a complaint about the mother’s treatment of him.

10. Y ran away three times in 2017 and has made a huge number of complaints about family members, in particular her mother, but has also cried and felt sad and had to withdraw to the First Aid room on account of wanting to go home to her mother.

11. The mother explained that the first time Y ran away on 1 April 2017, she had told the mother “Grandma told me you didn’t love me”. The child then said she wanted to kill herself and ran away. That story may or may not have been true. It seems less likely that the paternal grandmother would be cruel in that way.

12. Y is clearly a child with an explosive temper who also has the ability to calm down quickly as though nothing had happened.

13. The mother’s description of it was graphic, “[Y’s] point of view changes as often as she changes her underwear. I can’t keep up with her.”  I was left with no doubt that the mother loves all of her children and has occasionally asked for help, wanted it and needed it, and has lost care of two of the children in those circumstances.

14. There is no doubt that the mother wishes to raise the children for the balance of their teenage years herself. The last thing she wanted was separation of the siblings.

The mother’s partner - Mr Spence

1. Mr Spence has been a committed and devoted husband to the mother and to the child of their marriage. Being a step-father to the three subject children has been much more difficult for him.

2. He readily conceded smacking the children as a form of punishment. He was correct in his belief that smacking by a parent is not illegal. What he does not appear to have understood is that the subject children resented him and did not accept his authority to punish them in any way.

3. Just as readily he agreed that he has experienced anger anxiety and mood swings during most of his life. His psychological function, if not his mental health, deteriorated in 2016 with an adverse impact on his own life but relevantly on the lives of the children.

4. He dramatically over-reacted to perceived threats which brought him to the attention of police. When he thought a neighbour’s house was being burgled he put down an axe and picked up a baseball bat.

5. Unsurprisingly, Mr Spence described X as “a really nice pleasant young teenager”. X, it is agreed, is a quiet, studious girl who works hard at school and avoids family dramas.

6. Mr Spence found the younger two children much more challenging. He did not know what to do with a disobedient or defiant child.

7. Y raised multiple allegations at school of being harshly treated by Mr Spence, being smacked, hit with a spatula, yelled at. Mr Spence denied the allegations but it is likely that some of the things complained of did happen. More importantly Mr Spence was oblivious to Y protesting in whatever way she could.

8. When Z staged a protest things quickly ran out of control. Z had been given an Xbox by his father. The boy announced that he was going to stay home, play the Xbox and eat chocolate. He did not want to go to school.

9. There was an immediate clash between Z and his mother and step-father, united in anger. The boy punched the screen out of his window presumably to run away. The adults got hold of him and dragged him out of his room. Later he complained of carpet burns to his father and grandfather.

10. To the credit of the mother she rang the paternal grandfather asking him to take Z for a break.

11. Probably Z was given plenty of support by the paternal family for his complaints about Mr Spence. That is not to say there was nothing to complain about.

The father

1. The father considers that he is autistic. “Because of my autism I do struggle.” Whether or not he does have that condition he has difficulty managing time and events, “I’m often late for work. It’s hard to get out of the house.”

2. The father was asked what he would do if all three children were placed in his care. The proposition was put to him that he would hand them over to his parents. His denial, a one word “no” was unconvincing.

3. By date of trial the father had explained to the youngest child Z that it would be better for the child and everyone else in the family if the child lived with his grandparents.

4. The father is heavily dependent on his parents and appreciates their support.

5. They supervise the time he and his partner spend each month with their own child and Ms C’s youngest child.

6. The father and his partner are quite focused on having those two children returned to their care.

The father’s partner - Ms C

1. Ms C was not present at Court. Two medical certificates were tendered into evidence certifying that Ms C had “a medical condition” and would be “unfit for work from 28 to 29 May and 29 May to 1 June 2018”.[4] The decision was sensibly taken that Ms C would not be required for cross examination.

   [4] Exhibit 26 and Exhibit 30

2. The affidavit evidence of Ms C was generally supportive of the father. The content was focused mainly on her own difficulties leading to her elder four children being taken into care and her hopes for the future.

The paternal grandparents - Ms Garland and Mr A Garland

1. The paternal grandmother is an intelligent, strong, if not formidable, character. The paternal grandfather is an intelligent, straightforward man.

2. Together the grandparents have worked hard to assist their son and protect his children.

3. After separation of the parents when the mother was left with three very young children, the grandparents were willing to help and the mother was pleased to accept it. The mother and grandfather communicated well, as both acknowledged.

4. After the mother formed a relationship with Mr Spence everything changed. The grandfather frankly conceded that he and his wife wanted to keep the children away from Mr Spence. Their motive was safety, they see Mr Spence as dangerous. The mother felt conspired against and undermined.

5. The grandparents pressed for all three children to live with them despite X’s strongly expressed views. It is understandable. The Family Consultant certainly expressed “fragmentation of the siblings” as a major concern.

6. I am satisfied that the paternal grandparents will ensure that Z and Y will spend time with their father in his home and theirs.

7. I am also satisfied that despite their misgivings the grandparents will comply with orders and support the relationship between the two children in their care and the mother. In my view their early confidence in the mother was not misplaced. Her ability to manage her household including Mr Spence’s behaviour at times reveals her capacity as a parent.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. The history of this matter contains ample evidence of the inability and or unwillingness of the parents in recent years to communicate and work together.

2. The paternal grandparents have stepped in on behalf of the father to take responsibility, asking that all children live with them.

3. The resentment and hostility between the adults has deepened over time.

4. There is no prospect of consultation and compromise. The presumption of equal shared parental responsibility is rebutted. The party with whom each child lives must necessarily take sole parental responsibility.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children have their most important relationships with their parents which should be maintained. At this time Z is closer to his father but still very much wanting to see his mother. Y misses her mother and brother, is unsettled and needs stability. X is closer to her mother than her father. She is becoming independent in her thinking about the family.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. The father, armed with a spear gun, went with a group of 8-10 male friends to the home of the mother and Mr Spence. The evidence suggests that the father was quite excited by the challenge to Mr Spence although by no means in control of the group. It was immature at best.

2. The mother’s partner has been allowed by the mother to discipline the subject children and has been inexpert and at times heavy handed.

3. All children have been exposed to overt and also more subtle criticism of family members. All adults have in that way been emotionally abusive and not sufficiently protective of the children’s feelings, their love and affection for their parents and others.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. In the most recent Family Report the three children all expressed views:

The Child X

1. X was very clear about wishing to stay living with her mother and had no fears or reservations about her mother’s partner Mr Spence.

2. She did not want to spend time with her father “Dad’s weird.” The comment has an air of adolescent sarcasm rather than any deep seated opposition.

3. X was very firm about not wanting contact with her paternal grandparents. When asked why she replied “church, more church”. Her epigrammatic style reflects her wish for more autonomy in how she spends her time and in the more personal matter of what she believes.

4. She looked forward to her brother and sister spending time in her household whilst quietly acknowledging that “it has been more peaceful at home since Y hadn’t been there.”

5. I give considerable weight to X’s views given her age, maturity and thoughtful nature.

The Child Y

1. Y has been inconsistent in her wishes and views. For that reason her views need some interpreting rather than confirming.

1. Y externalises her feelings and is accused of having tantrums. She was clearly very distressed and dysregulated when taken to hospital saying she wanted to kill herself.

2. Y stated to the Family Consultant that she felt close to her brother, father and father’s partner.[5]

   [5] Family Report dated 21/08/2017, pars 51-56

3. She also stated that she wanted to spend time with her mother, sister X, and younger sister W. “It would be better if [Mr Spence] wasn’t there.”

4. If Y returned to live with her mother her competitive, ambivalent feelings towards both Mr Spence and to a much lesser extent, X, would likely lead to more clashing between herself and her mother and with Mr Spence.

5. Living with the paternal grandparents Y will be close to her brother and will be able to spend stress free time with her father.

6. It seems probable that there will be times when Y will very much want to go home to live with her mother. For that reason substantial weekend and holiday time with her mother will be a benefit, reassuring her of her mother’s love.

7. In future the paternal grandparents and the mother may agree that Y return to live with her mother. Until that time, if it does evolve that way, it will be particularly important that all parties comply with orders about Y so she is contained by her family. When Y says she does not want to go back to the home of her grandparents, the mother must insist. When Y says she does not want to see her mother, the grandparents must insist.

The Child Z

1. Z reported missing his sisters but otherwise is happy living with his father. He was firm about wanting to stay there. He also enjoyed seeing his grandparents and was clear that they did not denigrate either of his parents.

2. His views were generally in line with the expectation of the mother that Z would prefer to continue living with his father. X too expressed the view that although Z got on “OK” with their mother, he did not want to return to live in the home with her.

3. Z has had contact with the Department throughout his life. He is reported to have been seen by Child Protection aged two years due to a suggestion of paternal abuse [discipline].

4. At four years he had poor language skills, behaviour issues and consideration of autism. On referral, the autism possibility was not confirmed. His main problem was diagnosed as anxiety. The recommendation was parenting support managing his behaviour for his mother.[6] In retrospect Mr Spence should have been included in that recommendation.

   [6] Exhibit 15

5. At seven years his mother was worried by Z’s aggression and hitting his siblings.

6. Z aged 10 was referred for assessment by the family’s general practitioner. His mother had reported him being “much more aggressive, kicking and biting other children and “doesn’t listen.”[7]

   [7] Exhibit 20

7. I take Z’s views into account, moderated by his father’s inability to provide his full time care. Z’s best chance of regular, stress free time with his father is if he lives primarily with the paternal grandparents.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The father made an odd decision about the children. His parents are religious and active in their faith. The father said he had doubts, around age 27, about their religion so he “withdrew from the children so I wouldn’t unduly and negatively influence them”.

2. This may have been an excuse born out of immaturity for not spending as much time as orders allowed with the children.

3. Probably it is also an example of the father deferring to his parents, believing their skills and judgment to be superior to his own. He did not appear to consider the hurt and disappointment that the children might feel as a direct result of his decision.

4. The mother was more attuned to their needs in that regard. She continued to pressure the father to “step up”

5. When the father was asked if he thought Z liked seeing his mother, the father said he did not know. I accept that he was truthful about that.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The parents do not communicate directly. One of the many consequences of that breakdown in parental communication is that statements made by the children to one parent about the other are not discussed.

2. The father put the blame on the mother, “she twists my words.”

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The three children, two girls and one boy are all young adolescents.

2. For as long as they can remember their parents and paternal grandparents have been fighting over them.

3. There is a step-parent in each parent’s household whose behaviour towards and around the children has been unhelpful to them.

4. They are well loved children but their life has been destabilised by conflict.  This is particularly true for Y.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The mother was the primary carer of the children from birth. She worked hard as a single parent for the two years after separation. At that time she appreciated help from the paternal grandparents although always hoping that the father would engage more fully with them.

2. From 2009 the mother has had her present partner, her husband Mr Spence, and since early 2012 the care of their child. Over those years the mother wanted the children to enjoy a good relationship with Mr Spence. She allowed him to discipline them, although she knew he was an inexperienced person around children with emotional damage arising from his own childhood.

3. The father loves his children but has given them less of his time than they needed. He has since 2010 given priority to his partner Ms C and their child. Ms C represents a risk to young children. All of her children are in care in the community.

4. The paternal grandparents have done their best to support their son and help the mother. They have been unable to relate to Mr Spence.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There have been allegations of violence involving the children contained within Notices of Abuse filed over the years.

2. On 22 June 2017 two final Apprehended Domestic Violence Orders were made, both for the protection of the father and his partner from Mr Spence and also from Mr Spence’s sister. The orders were for 12 months.[8]

   [8] Exhibit 25.

3. The protective orders reveal an aggressive attitude by Mr Spence towards the father. This is also true of the father’s attitude to Mr Spence.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. This will be the third set of final parenting orders, although the first contested hearing.

2. Over the eleven years since separation of the parents there have been countless applications and numerous interim orders. There have been five reports/assessments by Family Consultants.

3. Excluding the Department as a party, not one of the parties has made every effort to comply with orders.

4. The mother has recently allowed X to decide not to see her father and grandparents. The mother described her as a “stubborn teenager.” The evidence suggests that the younger children are no less stubborn, to use that word. An order for all three children to live with the mother would predictably see the younger children also deciding not to see the paternal family.

5. The paternal grandparents encouraged Y to stay with them, and Z to stay with the father. They have not fully concealed their anger and disappointment about the mother’s partner from the children. Having said that, they are the family members most likely to ensure compliance with orders, even if they do not like those orders, for the benefit of the children. This is especially important for the sibling group.

6. Each parent must take responsibility for not leaving the younger children alone with their partners. Not only is that order protective of the children it is a means of reducing the possibility of disputed complaints by children.

7. Compliance with orders will be the best basis for no more proceedings in this Court or the FCC being instituted.

Any other fact or circumstance that the court thinks is relevant

1. The three children should be together as much as possible. In the home of the mother there is X and the mother’s child with Mr Spence.

2. In less than six years all three subject children will be young adults free to live their lives the best way they can. Their relationships with each other and their younger half-siblings may provide some mutual support for dealing with their angry, conflicted family.

Conclusion

1. X will continue to live with her mother. I am satisfied that her relationship with her father is intact as it is with her paternal grandparents. She has positioned herself to avoid exposure to conflict. Her steady goal is to study, go to University and have a career and an independent life. She will likely restore paternal relationships when she has some freedom in the matter.

2. Y and Z will live together with the paternal grandparents. Provision has been made for Y to have more time with her mother than Z. Y has greatly missed her mother. Y and Z are close as siblings and appreciate each other’s company. Their time with the mother will overlap. Y also has a close bond with her older and younger sister. Z has resented Mr Spence but enjoys time with him for short periods when pursuing common interests, mainly gaming.

3. The parties are free to vary the orders by consent and should do so if that meets the interest of the children at any particular time.

4. It is crucial for the conversations about changing the orders to take place between the adults in advance and not using children as messengers.

5. However if there is a proposal for change and the parties do not agree then the orders apply. The children should only be told of changed arrangements after any agreement is reached.

6. Orders are made accordingly.

I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 December 2018.

Associate:

Date:  19 December 2018