Sully and Sully and Anor

FAMILY COURT OF AUSTRALIA

SULLY & SULLY & ANOR

[2015] FamCA 1111

FAMILY LAW – CHILDREN – final orders – where the children are Aboriginal – where the sibling group is split – where the two older children live with the grandmother and three younger children live with the mother – where the grandmother seeks orders for all children to live with her – where the mother seeks orders for the three younger children to remain in her care – where the father seeks unsupervised time with the three younger children – where there are allegations of drug and alcohol abuse, family violence, child sexual abuse and alienation – where there is a high level of dysfunction between the parties – where there are multiple family reports – where it is recommended that the parties promote a relationship between the sibling group – where the independent children’s lawyer promotes the currently living situation with regular sibling unification – where consideration is given to the best interests of the children as the paramount consideration – where the additional considerations are outlined and deliberated – where orders are made for parental responsibility – where it is ordered that the two older children live with the grandmother and the three younger children live with the mother – where detailed orders are made for time spent – where it is ordered that on two occasions per year the sibling group spend time together.

FAMILY LAW – CHILDREN – family violence – where the father admits a history of extreme and damaging domestic violence perpetrated against the mother – where consideration is given to what impact the father’s history of domestic violence should have on the orders he seeks – where the father lacks insight into what impact his behaviour has on the children – where the father is so inculcated into an environment where family violence is the norm that he has suffered a level of desensitisation – where consideration is given to the unacceptable risk of harm to children in seeing violent behaviour – where the father’s evidence was unconvincing and unreliable – where orders are sought for the father to undergo counselling and a parenting course and that his time with the children be supervised – where the family consultant does not consider the father’s violent history a barrier to the children spending time with him on an unsupervised basis – where consideration is given to the allegations and history of domestic violence in applying the best interests test – where it is ordered that the father attend anger management, domestic violence and substance abuse counselling before spending supervised time with the children on a gradually increasing basis.

Family Law Act 1975 (Cth) s 4AB, s 60A, s 60B, s 60CA, s 60CC, s 65DAA, s 67U, s 69ZN, s 69ZQ, s 69ZR, s 69ZT
Evidence Act 1995 (Cth)

Amador v Amador (2009) 43 Fam LR 268
Stormount & Stormount and Ors [2012] FamCA 83
T & N (2003) FLC 93-172

Eastealam, P. and Grey, D. ‘Risk of harm to children from exposure to family violence: looking at how it is understood and considered by the judiciary’ Australian Journal of Family Law, vol 27 (2013) at 59

The Honourable Justice Strickland and Murray, K. ‘A judicial perspective on the Australian family violence reforms 12 months on’ Australian Journal of Family Law, vol 28 (2014) at 47

APPLICANT:

Ms A Sully

1st RESPONDENT:

Ms B Sully

2nd RESPONDENT:

Mr Winter

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

FILE NUMBER:

DUC

215

2010

DATE DELIVERED:

16 December 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

15, 16, 17, 18, 19 December 2014, 20 February 2015, 7,8, 9 and 10 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms O'Connor SC

SOLICITOR FOR THE APPLICANT:

Joanna Richardson & Associates

COUNSEL FOR THE 1ST RESPONDENT:

Ms Lawson

SOLICITOR FOR THE 1ST RESPONDENT:

Louise Coady Family Lawyer

COUNSEL FOR THE 2ND RESPONDENT:

Mr Childs

SOLICITOR FOR THE 2ND RESPONDENT:

Gonzales & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

All previous parenting orders in these proceedings be discharged.
The respondent grandmother Ms B Sully (“the grandmother”) shall have sole parental responsibility for E born … 1999 (“E”) and K born … 2002 (“K”) (collectively “the older children”)
The children E and K shall live with the grandmother.
The applicant mother Ms A Sully (“the mother”) shall spend time with and communicate with E and K in accordance with their wishes.
The mother is permitted to communicate with E and K by post and to forward letters and presents to E and K.
That the grandmother shall ensure that any letters and presents forwarded by the mother to E and K are received by them and that she encourage a response from the children acknowledging receipt.
The grandmother shall inform the mother by text message or direct communication of any serious medical matters relating to E and K including medical appointments and procedures or serious illness or injury and that the mother be permitted to access any medical information relating to the children through discussion with treating health professionals and access to other medical information.
That the grandmother shall provide all necessary authority to allow each treating health professional upon whom E and K attend to provide information to the mother.
The grandmother shall provide all necessary authority to allow each school at which E and K are enrolled to provide school reports and information to the mother upon her request.
The mother shall have sole parental responsibility for the children F born … 2002 (“F”), G born … 2004 (“G”) and H born … 2007 (“H”) (collectively “the younger children”).
That F, G and H shall live with the mother.
They shall spend time with the grandmother PROVIDING that E and/or K shall be resident in the grandmother’s household at the time as follows:
(a)for one week during the Christmas school holidays as agreed and in default of agreement for one week from the first Sunday of the school holidays in even numbered years and for one week from the third last Sunday of the holidays in odd numbered years;
(b)for one week in the June/July school holidays and in default of agreement for one week in the first half in even numbered years and for one week in the second half in odd numbered years;
(c)on any occasion that the grandmother together with either E or K are in N Town and upon the grandmother providing written notice to the mother four (4) weeks in advance of any planned visit to N Town for the purposes of spending time with the children, such shall take place from 4 pm Friday to 4 pm Sunday;
(d)at such other times as may be agreed between the mother and the grandmother in writing, by SMS text message or other direct communication.
For the purposes of implementing order 12(a) and (b):
(a)for the first visit after the making of these orders and each alternate visit thereafter, the mother shall deliver F, G and H to the grandmother at the Police Station in P Town at the commencement of the visit and the grandmother shall return them to the mother at the Police Station in P Town at the conclusion of the visit;
(b)for the second visit after the making of these orders and each alternate visit thereafter, the mother shall deliver F, G and H to the grandmother at the Police Station in I Town at the commencement of the visit and the grandmother shall return them to the mother at the Police Station in I Town at the conclusion of the visit;
(c)at such other place or places as the parties may agree.
For the purposes of implementing order 12(c), the mother shall deliver the children to the grandmother at N Town Police Station at the commencement of the time and the grandmother shall return them to the mother at N Town Police Station at the conclusion of the time.
That upon the father attending anger management, domestic violence and substance abuse counselling at a recognised government or non-government organisation and upon him providing proof of attendance of the same and the successful completion to the mother in writing:
(a)the children F, G and H shall spend time with the father as follows:
(i)for a period of three (3) months from 10 am to 4 pm on each fourth Sunday;
(ii)for a period of three (3) months thereafter, from 10 am to 4 pm Saturday and 10 am to 4 pm on the following Sunday on each fourth weekend;
(iii)for a period of three (3) months thereafter, from 10 am Saturday to 4 pm Sunday on each fourth weekend;
(iv)thereafter, from the conclusion of school Friday to 4pm Sunday on each fourth weekend.
Upon the father commencing to spend time with the children pursuant to order 15(a)(iv) hereof THEN in addition thereto, the father shall also spend time with the children as follows:
(a) for five (5) nights in the September/October school holidays;
(b) for one (1) week in the December/January school holidays.
PROVIDING that such time spent shall not coincide or occur immediately before or immediately after the time that the children shall spend with the grandmother pursuant to these orders.
That handover of the children as between the mother and the father shall take place at the N Town Police Station or at such other place as may be agreed between the parties.
That the father is restrained and an injunction is granted restraining him from:
(a)consuming alcohol or any illicit or non-prescription drug for twelve (12) hours prior to and during all time spent with the children;
(b)permitting the children to come into contact with any person contravening paragraph 18(a) hereof;
(c)denigrating the mother within the presence of or within the hearing of the children or allowing other persons to do so; AND FURTHER that upon it coming to the attention of the father that his wife Ms R has denigrated the mother in the presence of the children or has referred to her in a derogatory or offensive manner THEN he will forthwith return the children to the mother’s care and his time with the children in respect of the balance of any spend time period is suspended.
The mother is to provide all necessary authority to allow each treating health professional upon whom F, G and H attend to provide information to the father and the grandmother.
The mother shall provide all authority to allow each school at which F, G and H are enrolled to provide school reports and information to the father.
That the grandmother shall ensure the older children are at liberty to communicate with their siblings in the care of the mother by permitting them to telephone at any reasonable time on a phone number nominated by the mother.
The mother shall take all steps necessary to facilitate F, G and H telephoning their siblings in the care of the grandmother by permitting them to telephone at any reasonable time on a phone number nominated by the grandmother.
Each party shall provide the children in their care with privacy when they are communicating by telephone with the other.
Each party shall keep the other advised at all times of their residential address and contact phone number.
The grandmother is restrained from:
(a)initiating or continuing any discussion with any of the children about past allegations of abuse;
(b)initiating or continuing any discussion with any of the children about her desire for the children to reside with her.
The mother is restrained from bringing the children into contact with Mr Z.
The order for the appointment of the Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sully & Sully and Anor 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 ADELAIDE

FILE NUMBER: DUC 215 of 2010

Ms A Sully

Applicant

And

Ms B Sully
1st Respondent

And

Mr Winter

2^nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application filed 1 October 2014, Ms A Sully (“the mother”) seeks parenting orders in respect of E born in 1999 (“E”) , J born in 2000 (“J”), K born in 2002 (“K”), F born in 2003 (“F”), G born in 2004 (“G”) and H born in 2007 (“H”).
Whilst the orders sought in the application were comprehensive, the duration of the trial proceedings and the subsequent involvement of Mr Winter who is the father of F, G and H necessitated a re-consideration of the final orders sought by her. They are set out as an annexure to the written submissions filed on behalf of the mother on 9 November 2015.
A summary of those orders are as follows:-
(1)That the mother spend time with the older children subject to their wishes at a time when the sibling group are intended to spend time together.
(2)That the younger children will live with the mother and spend time with the father as follows:
(a)for a period of 12 months the father’s time with the younger children shall be conditional upon the father attending anger management, domestic violence and substance abuse counselling, and that the time spent shall be supervised for a period of six months by a recognised contact service;
(b)at the expiration of the 12 month period the father’s time with the children will have progressed from a graduated introduction to a period from Friday after school to 4pm Sunday once a month and for extended time during the mid-year school holiday period and the December/January school holiday period.
(3)That the father’s time is subject to an injunction that would restrain him from:
(a)consuming alcohol or non-prescription drugs for a period of 12 hours prior to the commencement of any time spent with the children and during the entirety of such time;
(b)denigrating the mother within the presence of the children or allowing any other person to do so;
(c)causing or permitting the children to spend time with or communicate with Ms R.
(4)That the younger children shall spend time with the grandmother as follows:
(a)on one occasion during term time alternating between the C Town and O Town children’s contact centres;
(b)on one occasion during the short term school holidays alternating between the O Town and C Town children’s contact centres;
(c)during the Christmas school holidays each year on two consecutive occasions at the C Town children’s contact centre.
(5)That the grandmother is restrained from denigrating or criticising the mother or allowing any other person to do so in the presence of the children and from bringing the children into contact or communication with Mr T who is the partner of the grandmother.
(6)There should be no prohibition on the children communicating with each other via electronic and other forms of social media.
The orders sought by the mother are silent in respect of her current position concerning parental responsibility. It is assumed that she seeks orders in respect of parental responsibility as set out in orders 2 and 3 of the application.
By Amended Response filed 24 October 2014, Ms B Sully (“the grandmother”) seeks the following orders:-
(1)That she shall have the sole parental responsibility for the older and younger children.
(2)That the children spend time with the mother as may be determined by the grandmother.
(3)That the children communicate with the mother in accordance with their wishes and supervised by the grandmother.
It is proposed that there be a notation to the orders sought that the grandmother will facilitate the children spending time with J. J resides with his father Mr Clark. J’s father was initially involved in the proceedings but has had no recent interest or desire to participate. Neither the mother nor the grandmother seek any orders in respect of J.
The extent to which, if any, the Court should focus on J was raised with the parties at the commencement of the trial, but neither party sought to disturb the current arrangements.
Whilst the evidence suggests that there is some ongoing contact between the grandmother and J, it is not suggested that the Court should be troubled by any uncertainty in respect of J’s current circumstances in the care of his father.
Accordingly, I do not propose to make orders in relation to J, nor do I consider it necessary to record the notation of the grandmother that she will facilitate the children spending time with J should the circumstances arise.
By Response filed 18 February 2015, the father sought orders that he and the grandmother share the parental responsibility for the younger children.
In addition, he sought that the children spend time with him as follows:
(a)one weekend per month from 9 am Saturday until 6 pm Sunday;
(b)half of each of the New South Wales gazetted school holidays and in default the first half in even numbered years and the second half in odd numbered years.
He also sought that the children communicate with him by telephone each Tuesday and Thursday between 6.30 pm and 7 pm.
Implicit in the orders the father seeks to support the children residing primarily with the grandmother.
In a document tendered by the father’s counsel, he refined the orders:
(a)one weekend per month from after school on Friday until 5 pm Sunday with the father to collect the children from school at the commencement of their time with him and that he return them to the N Town McDonald’s Restaurant at the conclusion;
(b)one week in the mid-year New South Wales gazetted school holidays;
(c)one week in the end of year New South Wales gazetted school holidays alternating from the week prior to Christmas Eve in even numbered years to the week following 2 January in odd numbered years;
(d)3.30 pm until 5 pm on the children's birthday and on the father’s birthday, but if the children are not at school then from 12 pm to 6 pm;
(e)that the children communicate with the father at their request and that he is able to communicate with them by telephone each Tuesday and Thursday between 6.30 pm and 7 pm;
(f)that the parties will keep the others informed as soon as is reasonably practicable of any significant or serious medical problems or illness suffered by the children, any medication that has been prescribed for the children, any significant cultural, social or school function to which the children are to attend, their residential address and telephone and any other matter relevant to the welfare of the children;
(g)that the parties do all things necessary to authorise the children’s school to provide the parties with information and/or documents relating to the children’s school attendance including but not limited to school reports, photos, newsletters, notices and the like.
The father seeks an order that the parties not discuss the proceedings with the children nor permit one party to denigrate the other or allow anybody else to do so in the presence of the children.
There is an obvious complexity in terms of the interplay of the orders that each of the parties seek.
In the most broad overview, it would appear that the father generally supports the thrust of the orders sought by the grandmother, but to dispel any suggestion of synergy between them, the grandmother seeks that any time that the children would spend with the father in the event that she is successful, would be the subject of supervision.
The mother is more permissive and would seek to impose supervision and parenting courses as a precursor and pre-condition to the children spending unsupervised time with the father.
The trial commenced before me on 15 December 2014 with 10 days of evidence concluding on 10 September 2015. Subject to receiving written submissions prepared by counsel for each of the parties, judgment was reserved.

The parties were well represented by counsel and the Court was assisted by the involvement and energy of the Independent Children’s Lawyer (“ICL”).
The mother relies upon the following documents:-
(1)Amended Initiating Application filed 1 October 2014
(2)Trial Affidavit of mother filed 1 October 2014
(3)Trial Affidavit of Mr U Sully filed 24 November 2014
(4)Trial Affidavit of Mr V Sully filed 1 October 2014
In addition, the mother relies upon written submissions prepared by her counsel filed 9 November 2015.
The grandmother relies upon the following documents:-
(1)Amended Response filed 24 October 2015
(2)Trial Affidavit of grandmother filed 24 October 2014
(3)Affidavit of the grandmother filed 3 May 2015
(4)Affidavit of Mr T filed 24 November 2014
In addition, the grandmother relies upon written submissions prepared by her counsel filed 27 October 2015.
The father relied upon the following documents:-
(1)Response filed 18 February 2015
(2)Trial Affidavit of father filed 26 March 2015
(3)Affidavit of father filed 20 February 2015
In addition, the father relied upon his Case Outline document filed 1 October 2015.
The ICL relied upon his affidavit filed 17 June 2013 annexing the report of Mr W (“family consultant”) dated 28 May 2013 (“first report”) together with his subsequent reports dated 22 October 2014 (“second report”) and 9 August 2015 (“third report”).

INTERVENTION OF FATHER

At the commencement of the proceedings there was no appearance by the father.
He had not filed any application but the Court record showed that he filed an affidavit in support of the mother on 15 January 2013. He was also involved in the first report of 22 October 2014 as prepared by the family consultant.
The Court was told that the father was aware of the proceedings and had secured legal representation.
Arrangements were made for the father to attend by telephone link. He was unrepresented. He told the Court that he was in N Town and that notwithstanding he did not have an application and was not seeking particularised orders, it was his intention to participate in the proceedings but the untimely death of his solicitor meant that he no longer had the physical means of travelling to Adelaide. It had been the father’s intention to travel with his solicitor.
The father acknowledged that he was aware of the proceedings and without any necessary precision submitted that he wanted orders that would see his children spend regular time with him.
Obviously, he was not able to attend Court on that day. The father was given the option of attending the proceedings on the following day but with little clarity, it was his position that his personal circumstances did not allow for him to travel at such short notice.
The father was not able to give any other option and I was satisfied that he would not be able to attend Court with certainty even if more time was allowed.
If any application could be gleaned from the father’s submissions, it was that the proceedings should be adjourned generally to give him an opportunity to obtain advice and prepare his case.
Given that he did not appear to be supporting the mother and whilst sympathetic to the grandmother he did not seem to be integral to her case. In the absence of any clear position and having established that he was aware of the proceedings and for the reasons given, I was not prepared to adjourn the proceedings. Accordingly, I did not give him leave to join the proceedings but was prepared to entertain such other application if he were to attend on the following day.
The trial commenced and on 19 December 2014 being the fifth day of trial, it was adjourned part-heard to 20 February 2015.
On that date, the Court was advised that the mother’s counsel had become aware of a conflict and was not able to continue as counsel. She was excused and upon her withdrawal the mother’s then solicitor appeared for her.
The father was represented on this occasion by his current solicitor. He relied upon his Response filed 18 February 2015 seeking orders that the children spend time with him. Obviously, he sought leave to intervene in the proceedings and in support relied upon his own affidavit and that of his wife Ms R both filed 20 February 2015.
Counsel for the grandmother sought to rely upon those affidavits in support of an application that the children in the care of the mother namely, the younger children live with the grandmother pending the final determination of the proceedings.
The focus of the affidavits was to allege that F had disclosed to the Ms R that the mother had been hitting G and that she and G no longer wished to remain in the care of the mother but would rather live with the grandmother. It was also alleged that the mother lived in an unsafe and undesirable part of N Town and that the mother was violent and her current partner was a man prone to extreme violence with the suggestion that the children may be at risk.
The issues raised in the earlier affidavits were to a large degree repeated in the father’s trial affidavit although his case did not rely upon evidence from his wife. At all relevant times the father’s wife was incarcerated.
The grandmother seized upon the allegations raised by the father in support of her application.
The proceedings were adjourned to 30 March 2015. The mother had secured a new solicitor and was represented by senior counsel.
The orders also note that the trial was to resume on 7 September 2015 with the father no longer seeking an order for shared parental responsibility with the grandmother.
During the period of the adjournment, the family consultant was to prepare an update report and J’s father was to be advised of the orders generally but in particular in respect of the children spending time together as a sibling group. That aspect of the proceedings was adjourned to 4 May 2015.
Following argument, judgment was delivered on 6 May 2015 which put in place orders that required the grandmother and the mother to do all things necessary to ensure that the children would spend time as a sibling group on no less than one occasion and for not less than two hours, with such time to be supervised by an appropriate family relationship centre and subject to the orders being complied with, the younger children would spend time with the grandmother from 5 pm on 4 July 2015 to 10 am on 7 July 2015.
Subject to written submissions being presented by all counsel, judgment was reserved on 10 September 2015. The final submission was received on 24 November 2015.

CONDUCT OF THE PROCEEDINGS

The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles as set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
I also considered it important that the provisions of s 69ZT should not be dispensed with and accordingly, the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of application.
In making that determination I have considered the following matters:
(i)the importance of the evidence in the proceedings;
(ii)the nature of the subject matter of the proceedings;
(iii)the probative value of the evidence;
(iv)the power of the court (if any) to adjourn the hearing to make another order or to give directions in relation to the evidence.
There were no circumstances in this case which would fall into the category of “exceptional”.
Furthermore, the provisions of s 69ZT(2) provide:-
The Court must give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision of the Evidence Act 1995 not applying because of subsection (1).

BACKGROUND

The older children continue to live with the grandmother. The younger children live with the mother. The child J lives with his father. He is not currently involved in the proceedings. The father of E is known but has no involvement with her. The father of K is also not involved in the proceedings. It is only the second respondent father of the younger children who seeks orders that they spend time with him.
The child K has lived with the grandmother since her birth by mutual arrangement between the mother and the grandmother. It is a relevant issue that W was conceived on the understanding and agreement that she would be cared for by the grandmother.
E has lived with the grandmother since January 2010. She spends no time with the mother and it is conceded by her the older children will only spend time with her subject to their wishes. At present the mother does not enjoy time with them but remains hopeful that the bringing together of the sibling group may provide an opportunity and impetus for the restoration of a relationship with them.
The grandmother resides with her de facto partner Mr T. That relationship commenced following the breakdown of the grandmother’s relationship to her former husband who is the father of four adult children which includes the applicant mother.
Regrettably, the mother and the grandmother have had a dysfunctional and conflicted relationship for many years. The mother considers that her relationship with her mother has been deeply troubled.
The grandmother alleges that the mother was violent and threatening. She further alleges that the mother engaged in significant family violence not just to her but to the children.
The grandmother lived in relatively close proximity to the mother until about 2008. She alleges that she did all she could to assist the mother in the care of the children. Over time E spent more frequent and longer periods in her care.
The period between 2009 and 2010 was highlighted by allegations of poor conduct and inadequate parenting of the children. It is suggested that the mother used alcohol to excess and that this had a fundamental effect on her ability to provide a safe and protective environment for the children.
The family dynamics were complicated by her relationship with the father. The mother complained that she was the victim of ongoing family violence. The parties separated in about 2010. The mother took significant steps to distance herself from the father. Intervention orders were obtained and the mother moved residence in order that she and the children were safe from his conduct.
In January 2010 the children remained in the care of the grandmother with the consent of the mother. She says that the arrangement was not intended to be permanent. The grandmother alleges that the mother was leading a dysfunctional lifestyle and that she was unable to appropriately and safely parent the children. The grandmother alleges that during this period the children displayed significant behavioural difficulties, were aggressive to others and did not demonstrate any adequate understanding of personal hygiene and appropriate conduct.
For her part, the mother alleges that the grandmother made it difficult for her to contact the children and spend time with them. The grandmother alleges that the mother was disinterested and in a period of five months visited the children on only a few occasions.
Matters came to a head in May 2010 when the mother attended the home of the grandmother with the father and attempted to take the children back into her care.
The children E, J, K and F stayed with the grandmother. The children G and H remained with the mother.
Orders were made in the local court for the children to return to the care of the grandmother. The children remained with her until final parenting orders were made in May 2011.
On 26 May 2011, Brown FM (as he then was) made orders by consent that the grandmother have sole parental responsibility for K and that she shall live with the grandmother. The grandmother and mother shall have equal shared parental responsibility for E but that the child shall live with the grandmother. The younger children were ordered to live with the mother and the orders made detailed provisions for them to spend time with the grandmother during school holidays and thereby with the older children. Provision was also made for E to spend school holiday time with the mother to include K but subject to her wishes.
The mother was permitted to communicate with the older children by letters, cards, email and regular telephone and other forms of remote communication.
The parties were restrained from consuming alcohol or illicit drugs during any time that the children were in their care, from using physical discipline on the children, exposing the children to domestic or family violence and denigrating the other in their presence.
The parties were to engage in counselling in order to assist with their differences and the younger children were to spend time with the father as agreed between the mother and the father, but with such time not to include any overnight period other than as may be the subject of an order.
The appointment of the ICL was extended for six months and it was hoped that this would represent a significant turning point in the relationship as between the mother and the grandmother, but importantly, that it would enable the siblings to come together as a group and maintain an ongoing relationship.
The orders acknowledge that J lived with his father and at this stage his involvement with his siblings would occur only by the parties using their best endeavours to include and involve him.
The position of the parties became more polarised following the consent orders. The mother has seen E only once. The mother alleges that pursuant to the orders, the three younger children went into the grandmother’s care for a portion of the long school holidays at the end of 2011. The grandmother failed to return F and the mother then issued an application seeking a recovery order pursuant to s 67U of the Act. The order was made on 8 February 2012 and the mother commenced the current proceedings on 29 February 2012 seeking orders that the six children shall live with her and she shall have sole parental responsibility for them. The children would spend time with the grandmother as may be agreed between the parties providing that it occurred in N Town, was under the supervision of a person as may be nominated by the mother and during school holiday periods only.
As is self-evident from the Amended Initiating Application, the mother concedes that the older children will live with the grandmother, J will live with his father and the mother will spend time with them subject to their wishes.
The younger children will spend time with the grandmother upon the terms and conditions as set out by the mother in her Initiating Application.
The mother is to a significant degree accepting of some of the allegations made by the grandmother but points to her recent history and her success in completing a Certificate II in Community Services and then obtaining employment as an administrative assistant at a local community college. The mother maintains this employment, says that she has a strong support network and highlights that she has no criminal history.
It is central to her case that she has appropriate accommodation, employment and substantial support. As an indicator of the coming together of these factors, she received an award from a local sporting club designating her as “Volunteer of the Year”.
It is reasonable to summarise the mother’s current position as being accepting of some of her mother’s allegations, but seeking to contrast her current stability and achievement.
The grandmother does not have such a benign view of the mother’s current circumstances. It is her position that the mother still consumes alcohol to excess, is aggressive with the children and of some importance, continues to associate with persons who are violent, abuse alcohol and would represent a poor role model for the children. It is argued that the mother lacks insight in terms of the conduct of her potential partners and the deleterious effect on the children.
The mother alleges that the grandmother has set out a quest to have the children removed from her care. The mother alleges that she has been the subject of false allegations and her mother has reported her on a number of occasions alleging sexual and physical abuse of the children.
The mother considers that her lack of contact with the older children is as a result of the grandmother’s campaign to alienate them from her. At times the mother alleges that the grandmother’s mischievous reports and notifications have included deliberately exaggerated allegations of sexual abuse, violence and neglect.
Whilst the mother concedes that there is every advantage in the children coming together as a sibling group, she strongly objects to any order that would place the younger children in the care of the grandmother for any extended period lest she retain the children as had been her earlier experience.
The involvement of the father is an added complexity. At an earlier stage in the proceedings the father was strongly supportive of the mother. As discussed, an affidavit was filed by the father supporting the orders that she sought enabling the children to live with her. The current round of proceeding suggests that the father may have changed allegiance to that of support of the orders sought by the grandmother. It is uncertain whether she is now significantly in support of the father resuming a relationship with his children and if so, whether there should be supervision.
The mother’s position is also uncertain and equivocal. The evidence will demonstrate that of recent date the mother had allowed the children to remain in the father’s care on an overnight period. She acknowledges that the children would wish to spend time with the father. The difficulty is how to reconcile a parenting order with the father’s admitted history of extreme and damaging domestic violence perpetrated on the mother.
Whilst his antecedent history will be the subject of greater discussion, if not conceded then I propose to find that the father was the perpetrator of extreme and persistent domestic violence. The issue is what impact this should have on the orders that he seeks namely, that the younger children spend significant time in his care. Fortunately there are no current allegations of aggressive conduct by the father towards the mother, although the same could not be said for his wife. Ms R has waged an aggressive and offensive social media vilification against the mother.
The question for the Court is to consider what orders, if any, should be made for the father to spend time with the children in circumstances where it could not be said that the father has expressed any contrition or in the course of his evidence demonstrated any real insight that at the very least his violent conduct would be unlikely to constitute an appropriate role model for the children and therefore question the extent of time that the children should properly spend with him and if so, pursuant to what terms and conditions.

PROPOSALS OF THE PARTIES

The proposal of the mother is that she would remain in N Town, her children would continue to live with her and she would have their sole parental responsibility. She proposes that they spend time with the grandmother thereby reuniting with the older children, but only if the time spent between the children and the grandmother was the subject of supervision. At trial, the mother remains fearful of the grandmother’s intentions.
The mother would permit the children to spend time with the father but only upon a graduated approach conditional upon him undertaking certain counselling and other courses to enhance his understanding that family violence is unacceptable conduct, but of greater relevance is the very real developmental damage that can inure to children if they are immersed in a violent environment.

The grandmother would seek that the children all live together in her home. The advantage to them would be the ongoing reunification of the siblings with the reasonable prospect of J being involved from time to time. The younger children would then spend time with the mother as may be determined by the grandmother and in accordance with the wishes of the children. It is likely that the grandmother will facilitate the younger children spending time with their father, but now subject to initial supervision.
The mother is fearful that if the younger children come into the care of the grandmother even for a short period of time, she will refuse to deliver them up to the mother and that they will be persuaded that they should remain in her care.
To a large extent the issues raised by each of the parties are set out in the reports of the family consultant.
The complicating factor is that the mother and the grandmother reside several hundred kilometres apart and that the journey by motor vehicle is approximately seven hours. The mother and father reside in N Town and therefore in close proximity to each other and the children, the grandmother resides in X Town in regional New South Wales.
It is uncontroversial that the accommodation able to be provided by the mother and the grandmother are each appropriate for the care of the children. There is less known as to the circumstances of the father’s accommodation, but in a general sense the children make no complaint about their time in the father’s home.
Whilst not called, the father’s current wife has played a significant part in the conflict and it is beyond question that she is disparaging and highly abusive of the mother. She is at present in prison and it is hoped that upon her release she will have an opportunity to reflect on her behaviour and accept that any time the children may spend with their father will be influenced by her ability to remain civil and to speak respectfully of the mother in the presence of the children.

EVIDENCE

The Mother

Leave was given for the mother to provide some further evidence in examination in chief. It was obvious from the mother’s appearance that she had sustained a black eye. The mother’s counsel was clearly aware of the allegation that the mother continued to associate with Mr Z with whom there is an ongoing association of domestic violence, anti-social behaviour and the consumption of illicit drugs and alcohol to excess. The mother provided a credible explanation for the eye injury that was inconsistent with her having been assaulted.
Order 33 of the orders of 26 May 2011 provided that the mother would seek a referral for the younger children to attend counselling and to keep them so enrolled and engaged for as long as may be recommended.
Counsel tendered a document from Mission Australia entitled “Community Partners – Family Record of Attendance”. It displays the engagement of the mother and the children from 2011 to March 2014. The import of the document (Exhibit 1) is to support the mother’s contention that both she and the children took seriously the order for counselling and that she has attended not just out of obligation but rather, with a genuine desire to receive counselling assistance.
Exhibit 2 is a certificate from a family relationship centre which purports to certify that the mother has completed a “Children in Focus Workshop” in December 2014 which has as its focus the following;
·understand the effects of separation and high conflict on children with a specific focus on the impact of family violence;
·learning to take a child focussed approach to making decisions with co-parents and other important family members in the children’s lives; and
·different types of parenting styles following separation.
Exhibits 3, 4, 5 and 6 are school reports for the children pertaining to the 2014 academic year. The mother’s evidence was that in her observation the children were coping adequately with school, but with a concession that there was some difficulty in getting H to attend school from time to time. The mother had a general view that at some stage there would need to be a change in the children’s school but there were no plans to do so in the near future. The mother did not consider that her ability to parent and supervise the children was compromised by her part-time employment as an administration officer averaging about 21 hours per week.
It was not surprising that a significant theme of the mother’s cross examination was her consumption of alcohol and any continuing involvement or relationship with Mr Z.
It was put to the mother that of recent date and at a local hotel, the mother met and socialised with Mr Z. The mother denied that it had occurred. It was alleged that Mr Z should have been in rehabilitation at a distant town some seven hours from N Town. The mother conceded that Mr Z was however in N Town. She understands that he was on release. She denied however that there was any arrangement between them, or that he had visited her. She did however concede that they had a conversation, but denied that he was staying with her. In particular, she denied that she had been assaulted by Mr Z but rather, that the injury to her eye was caused by a fall down some stairs.
Mr Z was apparently on prison release and possibly on parole in respect of violent offences. The mother appeared to know something about his current predicament and conceded that any further complaint of violence or assault may well cause him to go back to prison. She denied that her story of falling down the stairs was a concoction and did not consider that she had any need to protect Mr Z.
On the night in question the younger children were staying with the mother’s cousin a short distance from her home.
Whilst the mother appeared to struggle with the cross examination on matters of alcohol consumption and the perceived involvement of Mr Z, nonetheless the mother made no concession and whilst I am left with some misgivings, I generally accept that whatever the relationship was that existed between the mother and Mr Z, she now recognises that it is damaging and entirely adverse to the proper care of her children.
Of critical concern to the Court is the inability of the parties to bring the children together on a regular basis as was intended by the provisions of the orders of 26 May 2011. The mother was asked about her attitude to the children coming into contact with the grandmother and the older children. It was put to the mother that any suggestion that she supported the children spending time with the grandmother was disingenuous. The mother conceded that she had not done anything to properly investigate supervision and the following exchange is recorded:
Question: Because isn’t this your position:
You wouldn’t support the children seeing their grandmother if you had it your way?
Answer:I’ve always supported my children seeing their grandmother and I’ve never broken any of the orders, and any time they have had to go over I have made sure, and at times even convinced my little kids to go over because that was what they had to do.
Question:Mam, with respect, I didn’t ask you anything about that. I am asking you…?
Answer:Well I facilitate that. When I need to facilitate it, I do it.
Question:If you need a moment I am happy to give you a moment, but I was asking you a specific question, mam. I am asking you about your true view; ok? Do you recall telling the expert in this case that, if you had it your way, the children wouldn’t see their grandmother at all?
Answer:Yes
Question:I take it when you spoke to the expert you were intent on telling the expert the truth?
Answer:Yes
Question:And that was your truthful view at that point in time?
Answer:Yes
The mother acknowledged that it had been 16 months (as at 16 December 2014) since the children in the care of the mother had seen the children in the care of the grandmother. The mother considered that it was unfortunate that she needed to facilitate time with the grandmother.
Ultimately, the mother conceded that any time the children should spend with the grandmother needed to be supervised in order to allay her fears that the grandmother would attempt to alienate the children from her and persuade them that they should live in the grandmother’s home.
The mother’s attention was directed to paragraph 174 of her trial affidavit:
At this point I will not consent to the children spending time with my Mother as I cannot be certain that she will not undermine our relationship, speak poorly about me, make further baseless allegations or keep them at the end of any spending time period.
The mother conceded in evidence that “I am scared that she will – she will keep them again and won’t return them”.
The mother wasn’t able to contemplate any circumstances other than under stringent conditions of supervision for the children in her care to spend time in their grandmother’s home.
Whilst I accept that the mother’s presentation on this topic was genuine, it is clearly misguided. The advantages to the siblings of re-establishing their relationship would seem to be self-evident. The acknowledgment by the mother that the children had not spent time with each other as a group for more than 16 months can only be detrimental to their interests. In any event, the very complexity of arranging supervision and taking into account the distance between the mother and the grandmother, would speak against the viability of supervised time.
Under cross examination, the mother alleged that the grandmother may present a risk of physical violence to the children. She was fearful that harm may come to the children in the grandmother’s home.
The mother’s counsel was challenged on this issue. It was highlighted that there were no allegations of physical violence and risk to the children in the mother’s affidavit material. There may have been some issues in respect of family violence raised as part of the early history between the parties, but it was not put forward as part of the mother’s case either in her trial affidavit material or examination in chief. The mother’s first counsel submitted that the issue of the grandmother’s conduct towards the children may well be gleaned from departmental intervention and references in some other affidavit material.
I consider that little weight should be afforded to any allegation suggesting the children would be at some risk of physical harm in the care of the grandmother. The mother’s fear is not that the children would come to harm but rather, that the grandmother may not return them to her care and alienate them from her.
The grandmother’s counsel put the matter fairly to the mother in the following exchange:
Question:The main issue you do put fair and square is the question of the grandma’s influence over the children and your concern that, if she has unsupervised time that she will influence their views and wishes; is that right?
Answer:The way she speaks about me is a concern yes.
The cross examination of the mother again focussed on the extent, if any, of the relationship with Mr Z. The mother was aware of the charges against him for domestic violence. She understood that he had beaten his previous partner and had been released from prison. Whilst she was aware that Mr Z was on probation, she did not know why nor the terms and conditions of it. It was very properly put to her that either she was not telling the truth about her state of knowledge of Mr Z or she was wilfully blind to his appalling history of violence. This was more acute in circumstances where the mother admitted that she had explored having a relationship with him.
The mother also conceded that she had visited Mr Z in prison and somewhat surprisingly, she had taken her children with her on some of the visits. The mother was aware that his children had been removed from his care and were placed with their grandmother. She said in evidence that it was also common knowledge that he had a “troubled relationship with alcohol and in general with women”.
The mother agreed that she would attend the prison with the children about once a fortnight. On some occasions they would see Mr Z, but on others they would see other friends and associates of the mother who were incarcerated.
The focus of the mother’s cross examination was to establish that she was not telling the truth as to the status of her relationship with Mr Z. Accepting as I do that Mr Z presents an unacceptable risk to the children, it would clearly be an important matter if it was the mother’s intention to bring Mr Z into contact with her children.
It was put to the mother that the children had been the subject of assessment by a family consultant and in the second report they thought that Mr Z was the mother’s boyfriend. The mother acknowledges that the children thought that and by implication that it was a reasonable inference.
She acknowledged that Mr Z would telephone her from prison and that the children were obviously aware of those calls. The children were led to believe that they would be going on a holiday with Mr Z and that is what they told the family consultant. The mother agreed that the children may well have perceived the various areas of involvement between the mother and Mr Z as indicative of a relationship.
The mother further revealed that she had adopted a Facebook name and account that incorporated the name of Mr Z. The mother was not able to explain why she had done this other than to try and keep her Facebook profile anonymous.
In that endeavour, the mother acknowledged she would have been spectacularly unsuccessful. She was well known in the close knit community of N Town as was Mr Z. When asked the direct question, she could provide no explanation as to why she would adopt the surname of Mr Z as part of her public profile.
Ultimately, I did not consider that the mother had been truthful in respect of the extent of her relationship with Mr Z. I accept however that perhaps belatedly, the potential consequences of her continued association with Mr Z has resulted in her severing all connection with him.
Whilst the mother denied that she had made an error of judgment involving the children with Mr Z, I consider the mother’s denials to be without substance.
A significant focus of the mother’s cross examination was on lifestyle choices. In particular, the mother was asked as to whether she had had any other relationships with men following the breakup with the children’s father and with Mr Z. She denied that she had had other relationships. It was put to her that in or about September or October 2013, the mother had travelled to AA Town. She agreed that she had and confirmed that the children travelled with her.
The mother posted material on her Facebook account in respect of the trip. The posts suggested that the mother would go to AA Town, engage in significant sexual exploitation and she conceded, “hunt for sperm”.
The implication was that the mother was leading a sexually unrestrained lifestyle with little regard as to the background of her sexual partners. The concern is that the mother’s desire to publish her intentions by way of social media made it highly likely that in the small communities of N Town and AA Town such language and publicised conduct could well have found its way to the mother’s family, their children, associates of the mother’s children and ultimately, to them.
It was also put to her that some of the Facebook and other social media posts referred in offensive and abusive language to the children’s father. An example of the language, but not necessarily an isolated example, is at Annexure G of the grandmother’s trial affidavit:
Gee I hate cok suckaz who think they can blackmail me with my kidz
go get a gud kok fair up ya n while ya at it go fukk her n c how far yaz get I dont care if u back her I still dont want ya dieased up kok no more n all u sticky beaking kuntz run n tell him cause I just did n I feel gr8.
Irrespective of the language, the very possibility that the mother’s reference to the children’s father coming to their attention shows a lack of insight. The conduct is puerile, the potential for her significant.
It was put to the mother that in January 2010 the grandmother assisted the mother in vacating her home and moving furniture and her personal belongings. The observations of the grandmother of the mother’s home was that there were holes in the wall, broken furniture and filth and rubbish lying around the house. The mother denies those allegations. It was also put to her that the children were poorly dressed and that F had head lice and E and F suffered from boils.
The mother denied that her former premises were unsuitable, untidy or unhygienic. She further denied an allegation that she had ever pushed F’s head through a glass window causing the child to be hurt. The mother denied any allegation that she had been physically violent towards any of the children and that she would frequently leave the children unattended whilst she went out and socialised.
The various allegations were put fairly to the mother but were the subject of strong denial by her.
The mother was clearly mistrustful of the grandmother and considered that any allegations made by the children to others, but in particular the family consultant, were without foundation and were likely to be sourced from the grandmother.
The mother had expressed an intention that at some stage she would wish to relocate with the children to AA Town. Her father and brother reside there and she considers that it would be of advantage to the children to have the benefit of extended family.
AA Town is about 10 or 11 hours drive from N Town.
The children are well settled in their current school and it was put to the mother that F would not wish to leave her friends and school. If it is part of the mother’s case that F (and the other children) should remain in her care and that such an outcome would be consistent with their wishes, the grandmother’s counsel argues that F’s wishes may well change when she realises that moving to AA Town would dramatically affect her life.
I consider that more was made of the mother’s intention to relocate to AA Town than in reality the evidence would permit. Whilst the mother may desire to relocate to AA Town, she nonetheless recognises that it was unlikely to happen in the short to medium term and in any event, such a decision may well be dependent upon the nature of the orders made. A good example is that any periodic order made in favour of the children’s father would render it difficult if not impossible for the mother to relocate with the attendant distance that would be involved in such a move.
The mother was shown the school records with particular emphasis upon the partial or total absenteeism of H. She acknowledged that he had been partially absent on 26 days, totally absent on 10 days and partially absent on two occasions twice in the one day. At the relevant time, he was in year 1 and aged 7 years. The clear focus of the cross examination was to assert that the mother was not diligent in ensuring that the children, but in this case H, attended school regularly and on time.
The mother’s response was unconvincing. She acknowledged the absenteeism (in whole or in part) but considered that there may be many explanations and possibly as simple as H running late for school and/or having medical or other appointments. She candidly conceded in answer to the following question:
Question:You can’t get your kids off to school on time mam?
Answer:Sometimes, no. Sometimes we struggle and we run a little bit late.
A similar pattern appears to have developed of F’s school attendance. She had missed 21 partial days and 8 whole days. The mother was not able to put forward any explanation other than a late start in the morning.
Counsel put to the mother that she was not really interested in the children’s school and accordingly, had taken no effective steps either by directly speaking to the children or by obtaining the assistance of the children’s teachers to ensure that they attended school promptly and with as few absenteeism days as was reasonable.

The mother’s response was to acknowledge that there were “things that we struggle with”, but in a general sense she considered that the school reports demonstrated that both she and the children were coping well.
Counsel for the ICL questioned the mother as to the information she had either sought and/or received relating to the education of the older children. She noted that the Court order of 2011 provided for the mother to obtain school reports in relation to the children. The mother’s response was that she had tried to contact the children’s school but was not given any information.
It appears that the children were home-schooled by the grandmother for a while and ultimately left I Town for X Town. Whilst at I Town the mother did not receive any copies of the children’s school reports.
That should not be seen necessarily as a criticism of the grandmother. It is more likely that the mother took no steps to contact the school in order to get copies of the children’s school reports. The only effort that she apparently made was to raise the matter with her solicitor. She is uncertain as to what action was subsequently taken.
As at December 2014 the older children had been attending school at X Town for only a few months. The mother had not sought nor has she received any school reports evidencing the progress of the children. In answer to the direct question, the following response appears:
I can’t give you any reason except for that, over the last little bit of time, the only – the only way I could deal with things is just by dealing with my three little ones I had at home. It may seem a little bit selfish on my part, but to just have rejection chucked in your face over and over, it just makes it really hard. And that may be selfish on my part, but that was the only way I could – to be able to deal with my three little ones and make sure that everything was there, because when I am sad all the time, that’s not good for them.
The previous orders provided for the mother to telephone the older children on a weekly basis. Somewhat tragically, the mother revealed that she had not ever been able to speak with them. It was observed by counsel that the mother was seeking a similar order now. The obvious question was given that there had not been any observance of the 2011 orders, it was unlikely that there would be compliance going into the future. The mother’s response was that she hoped she may be able to speak to the children, although with a level of pessimism
At the conclusion of the mother’s evidence, I was satisfied that she had taken steps to improve her personal circumstances and the general environment of the children in her care. She clearly did not appreciate the potential for harm to the children by introducing them to Mr Z and having him in their presence. There is no suggestion that any harm did come to the children, but it would be difficult to find other than that Mr Z would pose an unacceptable risk to them.
The mother, at one point, properly admitted that she was considering a relationship with Mr Z. If it had come to pass it would have been most unwise. Fortunately, it did not and I consider perhaps with some hesitation that the mother now realises that Mr Z and his lifestyle and those who may emulate him, would represent the very antithesis of an appropriate role model for the children.
It may well be that it has taken these very proceedings for the mother to give proper recognition to providing an appropriate, caring and safe environment for the children, but I accept that of recent date she has gained the necessary insight.

Mr V Sully

This witness is the maternal grandfather. He resides in AA Town and has done so since about 2013. He lives in close proximity to his son Mr U Sully. It is his evidence that he has maintained a good relationship with the mother and if required he would assist in facilitating the children to spend time together as a group.
I have no doubt that this witness was keen to assist and is well intentioned. His current accommodation is however unsuitable for such an endeavour.
Whilst I have no doubt that the children would generally benefit from coming into contact with their extended family, I am not greatly assisted by his evidence.

Mr U Sully

This witness is the mother’s brother. Like his father, he resides in AA Town.
The last time that he saw the children was in September 2013.
Not surprisingly, he was able to comment on his observations of the violent relationship between the mother and the father when they were together. He was very much supportive of the mother’s parenting of the children.
He appeared more closely aligned with the mother than the grandmother.
Like his father, it is likely that the children would benefit from coming into contact with their uncle, but beyond the acknowledgement of the benefits to the children of their extended family, I was not greatly assisted by his evidence.

The Grandmother

The grandmother relied upon her trial affidavit filed 24 October 2014.
Under cross examination, she confirmed that all of the children except J should reside with her and in relation to the three younger children, they should spend time with their mother each month, but under such terms and conditions as the grandmother should determine.
The distance between the grandmother’s home in X Town and N Town is about 11 hours travelling time. The children would spend time with their mother at the Interrelate contact service in O Town. That town is situated about 1 ½ hours from X Town and 8 hours travelling time from N Town. Apparently there is no waiting time and the Interrelate program is able to assist at short notice albeit for day visits only and presumably for some few hours.
It is her proposal that the mother would travel to O Town once a month to spend two hours of supervised time with the younger children. The grandmother was open to altering the time depending upon how the visitations took place.
There is also the advantage of a further contact service known as the “Burnside Program”. This would enable longer periods of supervised time. It is the grandmother’s position that whilst she does not rule out overnight time with the mother should the children reside in her home in X Town, it would only be in circumstances where the arrangements seemed to be working well and the children keen to spend more time with their mother.
The grandmother did not appear to understand that the current proceedings were not by way of interim relief but rather, the focus and attention was to finally determine the parenting issues as between the parties. It was not intended that the process would in some way be graduated depending upon favourable reports of the time that the mother was spending with the children being received.
Ultimately, I challenged the grandmother with the following exchange at page 163 of the transcript:
Question:And you would understand, listening to your own evidence, that there is some uncertainty or, at least, I am getting the impression that there is some uncertainty in your position in the sense of what will be the long-term arrangements for these children, or have I missed it? If I have, you can tell me. You can tell me that you think I have not quite understood what your position is, but I can tell you, I am not understanding what you see as being the long term arrangement. If you said to me, “Look, if the children live with me, then, I think they should spend half school holidays with their mother. And if there is a weekend here or there, taking into account the distance, that might be able to be arranged, and that’s what ought to happen from now until the time the children reach an age where they make a different decision themselves”. I would understand that?
Answer:Ok
Question:But I am struggling with the concept of a process where the children are under strict supervision at some particular centre, and then, depending upon how you think that’s going and the reports you receive, you then might decide that the children can spend a bit more time with their mother, or alternatively, if it is not going very well, you might decide that they don’t. Now do you see that’s not a very certain way forward?
Answer:Yes your Honour.
Following a further exchange with the grandmother, the gravamen of her position is that she considers the children’s safety to be at risk in the care of the mother and accordingly, supervision is required.
Her concerns are based upon the reports of the children who have allegedly told her of their physical harm at the hands of the mother. There is also verbal abuse of the children and the following evidence of page 166 represents a reasonable summary of her position:
They told me that – they’ve told me that she will get angry with them and just pick up whatever is available and hit them with it or throw it at them, that she – I have seen her hit them across the back and the head and – and knock them to the ground just straight away.
She reports that she has heard the mother refer to the children as “little mother fuckers”. There is a further concern arising from the mother’s association with partners who have an acknowledged history of violence and alcohol abuse. Mr Z is, according to the grandmother, a prime example but by no means is he the only relationship concern that she has.
The grandmother appears cautiously disposed to the children’s father spending time with them providing it is supervised. She acknowledges that the relationship between the mother and the father was violent and it is her position that the mother allows violent individuals to come into contact with the children, with the real possibility of harm taking place. It is a contradiction in the evidence of the grandmother (and for that matter the mother) that notwithstanding the persistent family violence perpetrated by the father to the mother, nonetheless, providing there is supervision it is not suggested that he should be stopped from spending time with the children. Neither the mother nor the grandmother appear to consider that the father may present as an appalling role model for the children irrespective of what may appear to be an innocent but misguided wish on the part of the children to spend time with him.
The grandmother continues to reside in X Town in regional New South Wales, She is supported by but does not live with her partner Mr T and has the advantage of her adult daughter living about 20 kilometres from town.
X Town has a small central school and there is availability for the children’s enrolment.
As a reaction to the more benign position adopted by the grandmother in respect of the children’s father, the following exchange is informative:
Question: And likewise, [the father] was violent?
Answer:I’ve never seen [the father] violent towards [the mother]. I only had her tell me that and since then I’ve had the children tell me that they never saw their father violent with their mother, only the reverse.
It was put to the grandmother that the father had conceded domestic violence. She conceded that there was a poor relationship between them and that it was not a good environment for the children “regardless of where the violence comes from”.
When challenged directly about whether it was really her position that the mother was the violent person in the relationship, her response was that she could only draw on her own experience and from statements made by the children.
I find that either the grandmother was blinkered in relation to the conduct and behaviour of the father towards the mother, or her relationship with him was such that it did not allow for her ready recognition that his admitted domestic violence and aggression may be fundamentally detrimental to the children.
The following extract from an earlier affidavit of the grandmother was put to her:
I’ve always believed that [the father] loves his children and would do the best he could do to keep them safe, whereas [the mother] has used [the father] to get her children and drop him out of their lives every time she no longer wants him. [The mother] is the most violent person in the children’s lives.
The grandmother was asked to reflect upon that statement and her position was that without equivocation she accepted the accuracy of it.
Her observations of the father were that she had only seen him as a caring parent.
She alleges that the children may have been at risk of sexual abuse in the care of the mother.
It was put to her that a notification was made by her on 20 September 2010 in the following terms:
The child disclosed unclear details of possible sexual abuse allegedly perpetrated by two persons who appear to be older than teenagers when they resided in a N Town address at their mothers.
The witness confirmed that this was not the only notification and every time the children made a disclosure it was reported.
In a report of the family consultant, he notes that there was an acknowledgement on behalf of the grandmother that E and J were sexually abused when they were much younger by a male who was staying in her home.
The grandmother at first denied that this was the case and suggested that the family consultant had made a mistake. Ultimately, she conceded that the young man who had sexually abused the children did live in her home at least for a little while and that he was the father’s nephew and that at some point he went to live with the father, the mother and the children. The abuse, if it occurred, did not occur at her home but rather, at the home of the mother and the father whilst they were still together. The witness acknowledged that the children were in her care from late December 2013. It seems that G and H remained only for 5 days as a result of their challenging behaviour. She called the relevant department for assistance and ultimately they were returned to the care of the mother. The grandmother attributes their oppositional behaviour to them living in a violent situation in the mother’s home. What is clear is that the children were not reluctant to return to their mother’s home in N Town.
The grandmother recognised that much of her concerns emanate from her view of the history of interaction between the children, mother, father and grandmother. She conceded that if the mother was properly parenting the younger children they should stay with her. Furthermore, she accepted that the gravamen of her case was not that the children should necessarily be together, but that they are safe. She conceded that she was happy for J to live with his father in circumstances where there is now only infrequent contact between the children in her care and J.
Counsel explored with the grandmother her preparedness to facilitate time between the mother and the children. By reference to the events of 2010 and 2011, the proposition was put to her that she did not consider there should be any further time between the children and their mother. Whilst she disagreed with the proposition, it is her evidence that nothing was arranged because the mother would not speak to her.
Ultimately, I was left with the view that the grandmother was not supportive of the order that the children should spend time with the mother.
A fair summary of her position is exemplified by the following interchange at page 205:
Question:Even though at the moment it’s your view that they should have once a month with their mother?
Answer:This is five years on. I am not in the same situation I was. And I have – I have – I don’t know how to say it. I am not the same person I was. Ok. And I – I allow for the fact that these children have been with their mother for that much longer and – have an attachment to their mother. I don’t believe it’s the best interests of them to have it cut completely. I am concerned for their safety. If their safety can be seen to, then there’s no reason for the visits not to take place.
The grandmother knows little of the current circumstances of the children. Notwithstanding the 2011 orders that provided for the proper exchange and provision of school reports, that has not occurred. It is not germane as to why it did not happen, but it is important to acknowledge that the provision of school reports was not pursued.
Counsel put to the grandmother that E had spent no time with her mother since October 2011. The witness agreed. In a report to a family consultant in November 2012, the following appears:
I know I’m allowed to go if I want to. I do want to go, but I don’t like some of Mum’s friends, such as [Ms BB]. She used to hit me all the time. She scares me. I don’t know if she is still friends with them. I know Mum doesn’t go to [CC Street] any more. That’s a bad area. That’s where kids don’t get looked after and people drink too much.
E said that in addition to missing her mother in N Town, she also misses her Aunty DD and her younger siblings, saying:
I have no idea why they are not coming over to [I Town], but I do miss them.
E was asked if she would like to say anything to the Court. She said, “ask Mum who my real dad is, because I really want to know”. E added she would also like to say she wants “Grandma and Mum to get on better and no more Court and everything is settled so everyone talks, no arguments or fights and we will all see each other.”
The witness conceded that notwithstanding her allegations that the mother may have been prostituting the children, nothing was raised by E. At that point I intervened in the cross examination and put to the witness that if she reflected upon the words attributed to the child, they would generally ring true. Ultimately, the witness conceded that the child’s expressed wish to see her mother, her siblings and be safe with an end to the dispute between the mother and the grandmother would not be an unreasonable attribution of sentiment by the child.
A further extract from the family consultant was framed in the following recommendation:
You must stop exposing the children to this. They need to be quarantined. They have been exposed to far too much information. With regard to [the grandmother] I consider it likely the children have been exposed to far too much adult information in her environment and she would do well to restrict the information to which [the older children] are exposed.
That proposition was put to the witness and she disagreed with the assumption. She asserted that she did not speak at length about these things to the children but ultimately I find that the atmosphere in the grandmother’s home was a toxic environment in relation to the mother and her ability to care for and protect the younger children. Notwithstanding that view, much of this consideration is of historical observation only.
The witness was shown the children’s school reports and in particular those relating to the child F. The proposition put to her was that her marks were outstanding and she received significant reward for her in-class behaviour. The first response of the witness was to downplay the advantage to a child of receiving a behaviour award. It was suggested by her that it was those children whose behaviour was the most controlling that gained the relevant awards.
I asked the witness whether I was entitled to take the optimistic remarks of the children’s teachers at face value. The witness conceded that even on the most pessimistic view of the matter, there was some good in the reports and it was open to me to place weight on the apparent significant scholastic achievement of the children.
Put simply, optimistic school reports may well be an indicator that “something good is happening in the mother’s home”.
Whilst begrudging of an answer, I find that the grandmother ultimately conceded that weight could be placed on the academic achievements of the children and that they were an important indicator of the children’s behaviour and development.
The witness was reminded of the apparent lack of compliance by each of the parties in respect of the orders of 26 May 2011. It was put to her that irrespective of the outcome there would be orders made which may well require each of the parties to facilitate at the very least the children contacting each other irrespective of whose care they may reside from time to time. In answer to the direct question, the grandmother accepted that if an order was made it would be complied with.

Under cross examination by senior counsel for the mother, the family consultant was challenged on his recommendation that the children should spend unsupervised time with the father. The gravamen of the mother’s position was that there must be a consequence or potential of psychological harm being occasioned to the children by their father’s lack of insight into his domestically violent behaviour.
The father allegedly told the family consultant that he did not engage in domestic violence or aggression with his current wife. The history of the father’s violence towards the mother was put in context of an ongoing course of conduct spanning 10 years. The father and his current wife met in jail. The father’s wife was released last year and is now is back in jail. The father’s pre-sentence report recommends that the father undergo a psychiatric assessment. The father confirms that he has never undertaken psychiatric or psychological assessment and more relevantly, has no intention of doing so.
The father’s position is that he would rather stay away from the mother or the children than get into further trouble.
Notwithstanding those matters, the family consultant considered that he had no reason to doubt that the father is anything other than serious about providing an appropriate level of care and a role-model to the children.
Ultimately, a concession was extracted from the family consultant that the father’s lack of interest in the children’s schooling and education was a worry.
Counsel for the grandmother highlighted that the mother had downplayed her relationship with Mr Z. Obviously, when the family consultant interviewed F, she gave the impression that Mr Z was very much a part of the mother’s life. The mother attempted to minimise the relationship in circumstances where Mr Z had a long history of convictions for violence, alcohol abuse and intravenous drug use.
Notwithstanding the obvious deficiency in the mother’s evidence pertaining to her denials of a relationship with Mr Z, it was still the family consultant’s position that the mother had moved on and had gained significant insight as was demonstrated by the change in attitude of the children to remaining with her, their substantial improvement and progress at school and the mother’s own personal development in terms of her employment.
The family consultant was asked to reconcile how his view that the mother had gained insight into the damaging effects of introducing violent partners to the children when she showed scant or little regard for their welfare by leaving them with the father over the Christmas/Boxing Day period.
The family consultant considered that it could be reconciled by the mother’s intention being ill conceived but nonetheless well motivated, taking into account that the children were keen to spend time with the father. It may well have been unwise but it was not without some reasonable consideration.
Nonetheless, there was a concession that the children observing the altercation between the father’s wife and the mother must have been distressing, particularly where they may have seen or witnessed family violence during the period that the mother and father were together.
Evidence was also given that the grandmother had told the family consultant that G had been singled out by his siblings. This was not an observation made during the course of the assessment and whilst the family consultant conceded that there was not a simple answer to the complex circumstances that confronted the children at this time, the issue is not so much the standard of care likely to be exercised by the grandmother (that was already demonstrated) but rather, it was the issues of transition of the children from the care of the mother to the grandmother that were insurmountable in his opinion.

PRINCIPLES RELEVANT TO PARENTING ORDERS

The mother seeks that the younger children continue to live with her and that she have their sole parental responsibility. The grandmother seeks that the younger children should live with her, thereby purportedly reuniting the sibling group. She seeks that she have sole parental responsibility for the children.
If the mother is successful in her application for primary care of the younger children, the grandmother does not seek parental responsibility for them. In those circumstances, the mother accepts that the older children would continue to live with the grandmother and any resumption of relationship would be at their express request. She concedes parental responsibility in favour of the grandmother notwithstanding her firmly held belief that the grandmother does not promote a relationship with them.
The father only seeks orders that the younger children spend unsupervised time with him. He does not seek orders for parental responsibility.
The parties are therefore not in dispute that irrespective of orders made by the Court, there will be no order for shared parental responsibility.
The mother and grandmother are unable to communicate almost at any level. Their mistrust of the other is without equivocation.
The father does not seek parental responsibility and given his admitted conduct and violent history directed to the mother, the Court could not conceive of a circumstance where the mother and the father would be in a position to discuss significant issues affecting the children.
There is therefore a high level of dysfunction as between the mother and the grandmother, but it would seem that at least in respect of the father, communication is available to the extent that it may be necessary in order to facilitate orders that are to be made in terms of the time that the children spend with him. The relationship between the father and the grandmother may well be on a better footing, but that consideration only becomes relevant if the grandmother has the primary care of the younger children.
A further complexity arises from the physical distance between the parties which makes it difficult for there to be any effective involvement by each of them in the parenting of the children.
I am mindful of the obligation created by s 60CA of the Act that in deciding whether and if so what parenting orders should be made in relation to a child, I must have regard to the best interests of the child as the paramount consideration.
The best interests test is met by the application of the objects of s 60B(1) and (2). This is not merely a recognition of principle but must be given effect.
In determining what is in a child’s best interests the Court must consider the matters set out in s 60CC(2) and (3), namely the primary considerations and the additional considerations.
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am mindful of the grandmother not being a parent for the purpose of the Act, although this would impose little impediment taking into account the broad considerations that are enabled pursuant to s 60CC(3)(m).
I am however mindful of the direction contained in s 60CC(2A), I have obvious regard to the allegations of family violence as expressed by the mother directed against the father and clearly cognisant of the father’s appalling history of domestic violence. I have also found that the father has expressed neither contrition, remorse or indeed any insight into his conduct or perhaps more relevantly, the real likelihood that the children and each of them have been adversely affected by their direct and indirect exposure to the father’s conduct. I reject absolutely any contention by the father that in some way the mother was responsible for his behaviour, or that she was a perpetrator of family violence.
The issue is not whether there should be terms and conditions placed on the father’s time that he would spend with the children, but whether there should be any order at all made faced with his uncompromising refusal to acknowledge the effects of his behaviour.
Given that there are to be no orders that the parties are to have equal shared parental responsibility, I am not obliged to consider the provisions of s 65DAA(1) and in particular whether the children should spend equal time with the parents or whether that would be reasonably practicable. The same applies in respect of substantial and significant time.
The proposals of each of the parties in any event would not readily enable either equal time or significant and substantial time. The obvious geographical limitations are in and of itself a barrier, but even were that not to be so, the dysfunctional relationship between the mother and the grandmother on the one hand and the very real consequences of the father’s family violence to the mother would speak against a proposition of equal time or substantial and significant time.
I have regard to the statutory obligations that are required in a parenting case and I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2) having regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests noting that the grandmother is not a parent for the purposes of some of the provisions to be considered.
(3)Have regard to the primary considerations under s 60CC namely the benefits to the child of having a meaningful relationship with both of the child’s parents (in this regard the mother and the father) and the need to protect the child or children from physical or psychological harm.
(4)Have regard to the relevant additional considerations under s 60CC(3).
(5)Consider the evidence adduced by each of the parties in respect to the particular considerations pursuant to s 60CC(2) and (3) and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.

CONSIDERATIONS PURSUANT TO SECTION 60CC

Section 60CC(2)(a)

It is argued by the grandmother that the children remaining with the mother will not enable a relationship to be readily implemented with the father. Notwithstanding the father’s violent conduct, the mother nonetheless proposes that the children should spend time with him. She does so however subject to condition of initial supervision and a requirement that the father undergo certain parenting courses which may assist in his rehabilitation and recognition that family violence has the potential to cause serious psychological harm to the children. For her part, the grandmother also proposes supervision and it is reasonable to infer from her proposal that not unlike the mother, she has misgivings as to the ability of the father to present an appropriate, safe and nurturing environment.
If the younger children were to live with the grandmother, the distance is challenging and given the father’s apparent disinterest exemplified by his lack of action until the hearing of this matter, there is less likelihood of the children being able to establish any relationship with their father than if they lived with the mother.
It is difficult to reconcile the position of the grandmother in respect of her perceived involvement by the father with the children. It is an important aspect of her case that the mother is not able to discriminate in respect of men that she brings into contact with the children and is critical of the mother for failing to protect the children from the violent conduct of the father.
In particular, the grandmother highlights the aggressive outcome of the December/January 2015 period that the children spent with him and his wife. It is common ground that the time ended in conflict, although the perpetrator is not a matter about which a determination has been made. It is however a relevant consideration that the father has not sought to involve his wife in circumstances where her conduct towards the mother has been one of abuse, aggression and significant offense.
On balance and relying upon the recommendation of the family consultant that the children are likely to benefit from a meaningful relationship with their father, it is a focus that needs to be considered notwithstanding my finding that the father’s evidence was unreliable and I found him to be an unimpressive witness. On any version, the father’s conduct would at least raise the very real potential to consider that the children would be at risk in his care and that they should spend no time with him.

Section 60CC(2)(b)

The need to protect the children from harm is central to the grandmother’s case.
She considers that the mother is not able to protect the children and continues to ignore the very real risk to them by bringing them into contact firstly with the father and then with other potential male partners, but in particular Mr Z.
I have not accepted the mother’s position that historically and as was likely to be the case in 2013 and 2014, she had little regard for the potential for harm to be occasioned to the children either directly or indirectly by her unwise relationships with others.
Whilst I do not accept that the mother would deliberately place the children in harm, clearly the younger children’s expression to the family consultant in the first and second report suggests that the children perceived a level of security in the home of the grandmother rather than in the mother’s home. Whether this was as a result of their experience living in the home with their father, the mother’s post separation conduct, her relationship with Mr Z, or indeed other unknown associates, is difficult to determine. It is of course interesting that the children were apparently kindly disposed to Mr Z, but also their father and his wife. There is the interesting dichotomy of the evidence suggesting that each of those individuals have the potential to pose a risk to the children, whereas the children are not adverse to them and make no complaint. The grandmother would argue that such is the subtlety and the insidious nature of an environment where family violence approximates the norm.
It was the clear position of the family consultant as at the second report that the children should reside with the grandmother. It is what has happened from that date to his third report in 2015 that is the focus.
In the same way that the family consultant was influenced by the wishes of the children to reside with the grandmother being suggestive of an instinctive understanding of the grandmother’s home being a more protective environment, the same emphasis was then placed on the clear wishes of the children that they would wish to remain with the mother. There is evidence that she has gained insight and that she no longer has or desires a relationship with Mr Z. She may well have been unwise in the circumstances in which the children were deposited with their father in early 2015, but the distinction is that the children were keen to see him and generally enjoyed their time. A year has now passed and the orders that the mother seeks are suggestive of a more measured approach. It is also significant that the family consultant considers that the children should spend unsupervised time with their father notwithstanding the clear history of violence and his lack of engagement in their lives and their school.
It is the mother that seeks a more cautious and measured approach.
Additionally, the mother alleges that the grandmother has no interest in promoting a relationship between she and the children and her inability or unwillingness to promote contact between the older children and the mother is suggestive of a similar approach being adopted with the younger children.
The evidence suggests that it was reasonable for the mother to express concern at the potential for the grandmother to undermine her relationship with the children based upon the events of 2010 when the children were not returned to her. She also highlights that the grandmother had unilaterally arranged with J’s father that he would go to his home rather than remain with the grandmother or the mother.
Allegations have been made by the grandmother that the mother has engaged in sexual and physical abuse of the children. It is further alleged by the grandmother that the mother has neglected the children.
The grandmother’s allegations are that the mother was engaged in receiving money from strangers having sex with the children and what the mother describes as “sensational allegations” that she was pimping, damaged the home in a rage and the sexual abuse of the child F in 2014.
The family consultant considers that there would be substantial distress caused to the younger children if now required to transition to the grandmother’s home particularly in circumstances where there would be no good reason for their time with their mother to be thereafter so truncated so to be almost non-existent. The grandmother’s proposal is that the mother spend some scant few hours per month supervised with the children.
The evidence of the family consultant strongly supports the contention that the children may be at risk of psychological harm if required to reside with the grandmother notwithstanding the obvious advantage of the reunification and reuniting of the sibling group.
I have found that the mother in 2015 presents as a significantly more responsible parent than was perhaps the case in 2014 and at an earlier time.
That is not to ignore the reluctance of the mother to promote orders that will enable the children to have a positive relationship with each other. The mother seeks that any time that the grandmother would spend with the children be the subject of strict supervision because of her fear that she will attempt to alienate the children from her.
Whilst that may be a risk, the children are now more emeshed and settled in their mother’s care and are more resilient to any overt adverse conduct.

Section 60CC(3)(a)

The older children at present do not demonstrate any wish or request to see their mother. There is however little or no basis for their trenchant refusal and it may well be the case that a position has simply become entrenched when the original cause or focus is now no longer a factor.
Nonetheless, the age of the older children is such that considerable weight must be given to their wishes.
The family consultant was satisfied that the younger children would now prefer to remain with their mother. The grandmother seeks to diminish the weight that should be placed on their wishes by reference to the children recognising there is more discipline in the grandmother’s home and considering that the greater freedom in the mother’s home, is a preferable environment.
The family consultant was generally not impressed with the maturity of the children particularly H. Whilst I do not consider that the wishes of the younger children should rule the day, I do not accept that no weight should be given to their wishes or that any view expressed by them should be discounted entirely.
The aspect that has impressed the family consultant is the change in the demeanour and attitude of the children from the first and second reports to the third report. It is interpreted by him (and I find correctly so), that it is likely to be a reflection of a substantially improved and better functioning household in the care of the mother.
Perhaps surprisingly, the younger children have expressed a wish to spend more time with their father. They do not report concerns in respect of violent or aggressive behaviour and appear at least initially, to either be fond of the father’s wife or at the very least, not opposed to her.
It is as a result of their wishes that the mother made the arrangement that she did in early 2015. Their wishes were given weight by the family consultant which caused him to recommend that the children’s interests would be served by spending time with their father and that supervision or other condition was not necessary.

The violent history of the father is not a matter of controversy. He acknowledges it. It is reasonable to assume that the children were favourably disposed to their father and that this carried some reasonable weight prompting the family consultant to recommend unsupervised time.
I give weight to the children’s wishes in respect of their relationship with their father. It is as a result of those wishes and the recommendations of the family consultant that I resile from an initial position that there should be no time spent between the father and the children.

Section 60CC(3)(b)

There is little or no relationship between the mother and the older children. It is unlikely that there will be a resumption of a meaningful relationship other than if each of those children determine individually to make contact with their mother. Whilst it is possible that their relationship with their mother is supported by the grandmother, there is little or no cogent explanation why there should not be at least some contact between them. Nonetheless, given the age of those children and the hiatus in any contact with the mother, it is unlikely that the Court could or should make any orders other than an acknowledgement that any relationship will be subject to their wishes.
There is no relationship between the mother and J, but that is as a result of his residence with his father. There is no evidence as to what efforts if any have been made for J to contact his mother, or whether such contact or communication would be promoted and supported by his father. In any event, neither party seeks orders in respect of J.
I am entitled to find that the younger children have a close relationship with their mother. Such a finding is supported by the evidence of the family consultant and I reject that in relation to the child G, the matter stands or falls on his last stated views in 2014 wherein he did not wish to live with his mother.
The children, including G, are performing well at school, there are no overt behavioural issues and the prevailing evidence is that the younger children are happy and settled in the mother’s home. Importantly, they relate well together.
The younger children have spent comparatively little time in their grandmother’s presence and it could not be said that there is any evidence to support the closeness of relationship. I am able to find that save as to a residual concern that the grandmother may not support a relationship between the children and their mother, nonetheless, her home would be protective. That however is not the principal concern of the family consultant and it is his evidence that strongly points to the high likelihood of distress being occasioned to the children arising from the dramatic consequence of a change in their circumstance from the mother’s home in N Town to the grandmother’s home in X Town.

Section 60CC(3)(c)

I accept the submission that there has been very little opportunity for the grandmother to have any active involvement with the younger children and if orders had been made, I have no doubt she would have been keen to engage with them. The mother is highly resistive and may not have readily supported orders that would enable the grandmother to have a greater involvement.
The father has had no involvement in the lives of the children, but I reject any contention that this is as a result of the mother’s actions. The father has shown no interest in the children, has not taken any opportunity to bring proceedings and/or seek orders and did not engage in the current proceedings until the last moment.
I do not accept that his explanation for what appears to be almost total disinterest arises because of his concern that his involvement may see him the subject of further criminal charges. It is a trite observation that if the father does not engage in aggressive or violent conduct, he is unlikely to be the subject of criminal proceedings.
The family consultant has given evidence that despite the obvious concerns about the father’s conduct and presentation, the children are very keen to spend time with him and there is a practical reality that by sheer dint of proximity, the children are likely to come into contact with him.

Section 60CC(3)(ca)

I find that the mother has appropriately maintained the younger children in her care as has the grandmother in respect of the older children.

Section 60CC(3)(d) and (e)

The orders promoted by the grandmother would result in a dramatic change to the circumstances of the younger children. There would be no change in respect of the older children save and except that the siblings would be reunited as a sibling group.
I have found that the younger children have not expressed a wish to reside in the home of the grandmother and the move from N Town to X Town would be a significant change for them. As far as the children are concerned, they would be separated from friends, their current school and family, but in particular, their mother. The move would be distressing. The outcome at best uncertain.
The clear consequences of such a change could not be considered as minor or benign. I am satisfied that there is a close relationship between the younger children and their mother. The consequences of the orders of the grandmother are not simply a change in environment, but the very real likelihood of a cessation of the relationship with the mother. The orders sought by the grandmother are to impose highly restrictive arrangements for the children to spend time with the mother, but in any event, under supervision.
The family consultant has found that the children are doing well and that the objective evidence, in particular from their school, their school reports and their reasonable achievements, are suggestive of children who are well adjusted and stable. The effect on the children arising from the grandmother’s proposal is at best uncertain. The family consultant does not consider the attendant risk to be warranted in the circumstances of this case and I place weight on his evidence given the appropriate justification for his changed position from that as presented in 2014 as distinct from his current position as presented in 2015.
I am mindful of the issues between the mother, the father and the father’s wife in December/January 2015. The children were keen to see their father and the mother facilitated that request (perhaps unwisely). I am however satisfied that to the extent that there was a violent altercation, the likely perpetrator was the father’s wife and either promoted by the father or at least without him taking any active steps to restrain her.
That incident occurred nearly one year ago and the orders that the mother seeks temper the benefit that she considers will derive to the children if they resume a more formal arrangement in seeing their father, but subject to him gaining insight as to his conduct and the need for him to take responsibility for the actions of those whom he might allow to come into contact with the children.
Both the mother and the grandmother recognise the practical difficulty of the physical distance that separates them. It is challenging and made more so by each of their separate proposals that any time spent by the children with the other party should be the subject of supervision. That places a further condition namely, that a centre must be found that is able to provide some level of supervision.
The options are limited and to some extent it is one of the reasons why the competing proposals for the children to spend time with either the grandmother (and therefore the older children) or the mother, is limited at best to a few hours of supervised time each month.
The very real likelihood is that the parties will not be able to manage the distance and this will further distress and separate the younger children from their mother if they reside with the grandmother and from the older children if they reside with the mother.
There are no practical difficulties with the children spending time with the father.
Notwithstanding that the subsection refers to a parent, I consider the issue of practical difficulty and expense to be a matter that is in any event likely to be considered as any other factor or circumstance that the Court thinks is relevant.

Section 60CC(3)(g) and (h)

The children are Aboriginal. The mother, the grandmother and the father all identify as Aboriginal men and women. Much is made by the father of his desire and intention to teach and promote Aboriginal ways to the children. He says he is a proud Aboriginal man and as part of his time with the children he would ensure that culture is at the forefront of his interaction with them.
Whilst I accept that each party identifies as Aboriginal, it could not be said that there was significant focus on matters of culture and connection to land and family.
Whilst I bring to account the right of the children to enjoy and experience their Aboriginal culture, none of the orders that each of the parties seek will interfere with that entitlement.

Section 60CC(3)(i)

In terms of issues relating to the responsibilities of parenthood, it is the mother that has exercised the principal parental responsibility in respect of the children in her care. The father has chosen not to engage in the lives of the children and specifically does not seek to do so in the future other than as may be necessary to facilitate the time that the children spend with him.

Section 60CC(3)(j) and (k)

I do not propose to add significantly to matters already raised in terms of issues of family violence. The criminal history of the father is well known and I find that his behaviour has been reprehensible and his protestations of contrition and understanding, without substance.
Each of the mother and the grandmother allege the other has committed significant acts of family violence. It is true that the mother has historically associated herself with men of a violent predilection.
Ultimately, I have found that the mother is able to protect the children and whilst I give greater weight to the need to protect the children from harm and abuse than the need to maintain a meaningful relationship, in this case it is not as simply answered as choosing one or the other. It is more nuanced and taking into account the evidence given by the mother and the strong view expressed by the family consultant (supported by the ICL), I consider that the children are able to be protected by their mother.
The mother and the grandmother both consider it appropriate that the younger children spend time with their father and subject to supervision and in terms of the mother’s proposal that he attend for counselling and parenting insight. The father does not consider that he either requires supervision or counselling. I can be confident that the state of the father’s evidence is that he will not undertake any parenting or anger management course. That is a matter for the father. To allow the children to spend time with the father without him having any understanding of the likely detriment occasioned to the children by his presentation as a poor role model is not a matter for compromise or diminution.
It is surprising that the family consultant considered that there should be no condition of supervision. It appears that their separate positions arise from the potential difficulty in quarantining the children from their father in circumstances where they live in close proximity to him. I disagree with their separate positions as adopted. The mother’s orders propose that upon the father undergoing appropriate courses and hopefully gaining insight into his conduct and the effect that it has on his children, he would thereafter be able to enjoy a fruitful and meaningful relationship with them.
It may be the case however that supervision will prove difficult, but with some amendment, the thrust of the mother’s position in respect of the children spending time with their father is appropriate and has a proper focus.

Section 60CC(3)(l) and (m)

The parties have been in litigation for a number of years. It could not be said that the litigation has served the interests of the children. They have been engaged in multiple assessment and the sibling group has been split. The litigation has engendered fear and mistrust to the extent where the grandmother considers if the children were to reside with her they should see their mother only in supervised circumstances. For her part, the mother considers that the grandmother, if unsupervised, will embark upon a process of seeking to undermine her relationship with the children. There may well be some support for the mother’s contention in the social media posts of the grandmother.
The child J, currently in the care of his father, is now likely alienated from his mother and separated from the grandmother and his siblings.
The older children appear unable to be reconciled to their mother.
There would not appear to be any advantage in terms of reducing the potential for future litigation by changing the current parenting arrangements. The younger children appear settled in the care of their mother. The older children appear settled in the care of their grandmother. The child J is settled in the care of his father. The younger children are able to have a relationship with their father subject to him undertaking appropriate parenting courses to gain insight into his violent conduct.
The focus then should be upon orders that would see the children reform a relationship with each other on a regular basis and without onerous condition and process.
There is no need for the children’s time together to be the subject of supervision. Whilst the mother may have had some justification for her concerns in respect of the potential influence that the grandmother may have had on the children in the mother’s care, some significant time has now passed and each of the children are more entrenched and settled in their current homes.
Distance between the children is challenging, but this would speak against longer periods of the children coming together rather than matters of frequency.
There may even be benefit to the mother in the sense that the re-establishment of the sibling relationship may well promote the advantages to the older children of re-starting some form of communication with their mother.
I propose to order that on two occasions per year the younger children spend time in the home of the grandmother and importantly, with the older children.

CONCLUSION

I make orders as appear at the commencement of these reasons.

I certify that the preceding four hundred and seventeen (417) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 16 December 2015.

Associate:

Date: 16 December 2015

[2015] FamCA 1111

16 December 2015

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Injunction

Remedies

Procedural Fairness