Tracey and Wilkes & Ors

[2018] FamCA 643

FAMILY COURT OF AUSTRALIA

TRACEY & WILKES AND ORS [2018] FamCA 643

FAMILY LAW – CHILDREN – Parenting – Application for the child to live with the mother and for her to have sole parental responsibility – Where the father opposes the application - Where this trial took place less than three years after final orders were made after a fully contested trial – Where there had been nine sets of interim orders prior to that trial – Where multiple applications and orders have been made since – Where the father proposes the earlier orders remain in place -where the paternal grandmother proposes the child live with her at any time the father is   unable – Where the parties’ relationship was one characterised by family violence – Where the child was subjected to sexual behaviours by his maternal cousins – Where the maternal family are dismissive of the risk – Where both parents are indifferent to Court orders - Where the child has had a tumultuous time since the last orders were made due to the behaviour of both parents – Where the child’s relationship with the father is likely to be lost if he lives with the mother – Ordered the child remain living with the father.

FAMILY LAW – CHILDREN – Parental Responsibility – Where presumption of equal shared parental responsibility does not apply due to family violence by both parents in the child’s presence – Where there is such hostility between the parents they are incapable of consulting each other – Where the father has capacity to make good long term decisions about the child – Where the father’s anti-social behaviour leads to trouble for him and impacts the child – Where there is benefit to the paternal grandmother having parental responsibility for the child as well as the father.

Family Law Act 1975 (Cth) s 60CC

Tracey & Wilkes [2016] FamCA 851
Wilkes & Tracey [2015] FamCA 486

APPLICANT: Ms Tracey

FIRST RESPONDENT: Mr Wilkes

SECOND RESPONDENT:	Ms L Bowen
INTERVENER:	The Department of Family & Community Services
INDEPENDENT CHILDREN’S LAWYER:	Powe & White Family Lawyers

FILE NUMBER: NCC 3031 of 2012

DATE DELIVERED: 24 August 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 26 February – 2 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taylor

SOLICITOR FOR THE APPLICANT: Joplin Lawyers

THE FIRST RESPONDENT: Self-represented

THE SECOND RESPONDENT:	Self-represented
COUNSEL FOR THE INTERVENER:	Mr Anderson
SOLICITOR FOR THE INTERVENER:	Crown Solicitors Office
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Powe & White Family Lawyers

Orders

1. Orders 5 and 7 of orders made on 25 June 2015 are varied to read as follows:

(1)All former orders relating to the child B, born … 2004, (“B”) are discharged.

(2)The mother shall have sole parental responsibility for B.

(3)B shall live with the mother.

(4)All former orders relating to the child C, born … 2007, (“C”) are discharged.

(5)Subject to Order 6 hereof, the father and the paternal grandmother, and no other person, shall each have parental responsibility for C.

(6)The father shall do all acts and things reasonably necessary to ensure C:

(a)identifies as an Aboriginal person;

(b)is enrolled at school as a child of indigenous heritage; and

(c)participates in any event relating to the promotion of indigenous heritage at, or sponsored by, the school.

(7)C shall live with the father and at any time when the father is unavailable to have C live with him, then C shall live with the paternal grandmother.

(8)Subject to the mother’s compliance with Order 9 hereof, the parties shall take all reasonable steps to ensure that C spends time with the mother as follows, or as otherwise agreed:

(a)Up to and including Sunday 24 January 2016:

(i)Each alternate Sunday, from 10.00 am until 4.00 pm, commencing on the first Sunday following these orders; and

(ii)On Boxing Day, from 12.00 noon until 4.00 pm.

(b)From Monday 25 January 2016:

(i)During school terms, each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday, commencing on the first Saturday of each term;

(ii)For the first week of each Autumn, Winter, and Spring school holiday period, commencing at 9.00 am on the first day after the last day of term and concluding at 9.00 am on the seventh day thereafter; and

(iii)For seven days each year, commencing at 9.00 am on Boxing Day and concluding at 9.00 am on 2 January.

(9)The mother is restrained from causing or permitting C to be, or to remain in, the physical presence of:

(a)The maternal grandmother, Ms D Tracey;

(b)The maternal grandfather, Mr E Tracey;

(c)The maternal cousin, F; or

(d)The maternal cousin, G.

(10)For the purpose of implementing Orders 7 and 8 hereof, the parties (or their nominees) shall exchange C at the McDonald’s Restaurant, H Street, I Town NSW.

(11)Pursuant to s 68B of the Family Law Act:

(a)The mother is restrained from entering upon or approaching within 100 metres of:

(i)The father’s residence; and

(ii)Any school attended by C.

(b)The father is restrained from entering upon or approaching within 100 metres of:

(i)The mother’s residence; and

(ii)Any school attended by B.

(12)Unless otherwise agreed, the parties shall take all reasonable steps to ensure that C communicates privately by telephone with:

(a)The mother each Wednesday at 6.00 pm when he is living with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure the child is able to receive the mother’s calls on that number at that time.

(b)The father each Monday at 6.00 pm when he is spending time with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure the child is able to receive the father’s calls on that number at that time.

(c)The parent with whom he is not then staying, on his birthdays at
6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

(13)Each party is restrained from denigrating the other in the presence or hearing of either B or C and from permitting either child to remain in the presence or hearing of another person denigrating the other.

(14)Each party shall notify the other of any medical emergency, illness or injury suffered by either B or C whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

(15)The mother shall authorise and request the principal of any school attended by B to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to her.

(16)The father shall authorise and request the principal of any school attended by C to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to him.

(17)Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.

(18)Leave is granted to the parties to furnish a copy of these orders to:

(a)The principal of any school attended by either B or C;

(b)Any medical professional providing treatment to either child;

(c)The Commissioner of NSW Police; and

(d)The Secretary of the NSW Department of Family and Community Services.

(19)Within seven days hereof the parties shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

(20)Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

(21)The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

(22)Any and all outstanding applications are dismissed.

1. All outstanding applications are otherwise dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC3031/2012

Ms Tracey

Applicant

And

Mr Wilkes

First Respondent

And

Ms L Bowen
Second Respondent

And

The Department of Family & Community Services
Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child, a boy, C, aged 10 years eight months at date of trial. He is now 11 years.

2. This trial took place less than three years after final orders were made in June 2015 (June 2015 orders) after a fully contested trial before another judge of this Court. There had been nine sets of interim orders prior to that trial.[1] There have been multiple applications and sets of orders since.

   [1] Reasons for Judgment dated 25/06/2015, par 10

3. The father and paternal grandmother represented themselves. The mother was represented by solicitor and counsel. The Independent Children’s Lawyer (“ICL”) was represented by counsel. The trial was conducted over five days.

The parties

The Mother

1. The mother of the child is the applicant Ms Tracey, now aged 38 years. The mother lives in a three bedroom house on a property at O Town. She lives there with her daughter B aged 14 and P the three and a half year old child of her current relationship with Mr Q (“Mr Q”). The mother says she does not live with her partner, they visit and sometimes stay at each other’s houses. Mr Q is said to live alone. He did not provide an affidavit or give evidence.

2. The mother is not in paid employment.

The Father

1. The father of the child is the first respondent Mr Wilkes, aged 34 years. The father has moved from the property in R Town where he had lived for many years to a house in the township of I Town. The father lives there with his partner Ms S aged 36 years and the two and a half year old child of their relationship, T. Ms S is not in paid employment. The father works as a tradesman.

The Paternal Grandmother

1. The paternal grandmother of the child is the second respondent, Ms L, aged 54 years. She lives in a house, in which she has a life interest on the property at R Town where the father formerly had a house to live in.

2. Her partner who had been ill and incapacitated died in 2015, several weeks after an incident where the mother forcibly removed the subject child from the home. The paternal grandmother has retired from her former employment in administration.

Short history of relationship and separation

1. The mother and father began living together either in 2005 or 2006 having known each other for several years. Their household consisted of themselves and the mother’s then two year old daughter B.

2. In 2007 C, the subject child, was born.

3. The parties agree, and a finding has been made previously in this Court, that the relationship between them was one characterised by family violence. Each nominates the other as the main perpetrator of that violence.

4. The father alleges that the mother herself was raised in a brutally violent family, was herself sexually assaulted as a girl and exposed to criminal conduct within her extended family.

5. The mother alleges that the father was a violent, abusive, threatening partner to her and has behaved likewise in his two subsequent relationships. She accuses him of drug use and criminal conduct.

6. In 2009 the parties separated. The two children moved with the mother to live in the home of the maternal grandparents.

7. Until late 2014 the subject child lived with his mother and half-sister B and spent time in various patterns with his father. He was then retained by his father after the child alleged sexual abuse of him by two of his maternal cousins which took place when the child was in his mother’s care. As a result of the 2015 orders residence with the father was confirmed.

8. Despite the separation having taken place almost nine years ago, there has been no easing of the poisonous relationship between the parties and their refusal to directly communicate with each other. Instead of doing so they have repeatedly returned to the Court.

The Applications

The Mother

1. The mother proposes orders in the alternative, dependent on whether the Court finds risk of harm for the child in the care of the father.

2. Either way, the mother proposes that she have sole parental responsibility for the child and that he comes to live with her.

3. The mother also proposes restraints on each of the parents approaching each other’s houses and on the father from approaching the school that the child’s sister B attends.

4. Further, the mother puts forward self-imposed restraint on allowing the child to be brought in contact with the child’s maternal cousins, F and G. This is consistent with such restraints in the 2015 orders.

5. If there is a relevant finding of risk about the father’s household, the mother proposes that the child spend time with the father for two hours per month, supervised by the V Group.

6. In the alternative, if there is no finding of risk, then the child is to spend time each alternate weekend, Friday afternoon to Monday morning and for half school holidays and other special times.

The Father

1. The father proposes that the 2015 orders remain in place, the child continuing to live with him.

2. In relation to time for the child with the mother, he proposed each alternate Saturday, supervised for a period of two months, then to be “reassessed for variation”. I infer that the reassessment would take place by the father but he may have meant a further Court event.

The Paternal Grandmother

1. The paternal grandmother proposes that the 2015 orders remain in place with provision for the child to live with her at any time that the father was unable to care for him.

The Intervener

1. The intervener (the Department of Family and Community Services) had proposed a raft of positive injunctions and restraints on each parent, on an interim basis, in order for the Department to manage the care of the child.[2]

   [2] Response filed 6/11/2017, and Exhibit 3

2. The intervener had not come to a concluded view about appropriate final orders by the commencement of trial. A thorough analysis of relevant matters was contained in the Case Outline handed up at commencement.[3] Further orders were foreshadowed subject to the evidence.

   [3] Exhibit 3, pages 8-18

3. In the end the intervener supported the application of the mother for the child to live with her and to spend limited supervised time with his father.[4]  Restraints common to other proposals were included.

   [4] Exhibit 28

The Independent Children’s Lawyer

1. The ICL reserved his position until the conclusion of the evidence.[5]

   [5] Exhibit 1

2. Ultimately he proposed that the child live with the paternal grandmother and that she have sole responsibility for him. There were proposals for the child to spend weekend and holiday time with each parent. There were also a raft of restraints on personal conduct.[6]

   [6] Exhibit 27

History of Relevant Events since June 2015 Final Orders

1. The parenting dispute has been before this Court and the Federal Circuit Court on too many occasions to count since the first application was filed by the father in November 2012.

2. On 25 June 2015 final orders (June 2015 Orders) were made in this Court. I have had cause, for more than one court event, to read the reasons for those orders being made.

3. Some careful consideration needs to be given to the June 2015 orders to understand the significance of events since.

June 2015 Orders

1. The orders provided for time and communication for the child with the mother in two phases:

   1)From June 2015 to January 2016 – for a period of six hours on each alternate Sunday and for six hours on Boxing Day 2015;

   2)From 2 January 2016 and thereafter, for alternate weekends, 9.00 am Saturday to 6.00 pm Sunday and for one week of each term holiday period and one week at Christmas commencing on Boxing Day (26 December to 2 January).

2. For both phases the periods of time were subject to compliance by the mother with a restraint on the child being brought in contact with identified maternal relatives (maternal grandparents and cousins in their care). The reason related to degrading abuse of the child by the cousins.

Contravention application filed by mother

1. On 27 August 2015, two months after the orders were made, the mother filed a Contravention Application asserting that:

   1)The father had failed to ensure C participated in NAIDOC activities;

   2)The father had failed to provide the child to spend time with her;

   3)The father did not allow the mother to speak to the child on the telephone, eight weeks in a row; and

   4)The relationship between father and his subsequent partner Ms J had ended with adverse impact on the child.

2. On 7 September 2015 the father’s then partner Ms J was successful in having an Apprehended Violence Order (“AVO”) made for her protection from the father. That relationship ended with Ms J moving out of the father’s home, together with the two children of their relationship.

3. Subsequently there was a breach of the AVO. When police attended the property of the father to serve the documents in relation to the breach, they saw, and charged the father with possession of, approximately 15 small pots of live marijuana.

4. On 24 November 2015 the father was gaoled for breach of the AVO and the drug related offence. He arranged in advance for the child to stay with his mother, the second respondent in these proceedings. The paternal grandmother mother lives in one of the three houses on the property where the father lived at that time.

5. The 2015 Orders had restrained the mother from entering upon or approaching within 100 metres of the father’s residence.

6. Once the mother learned that the father was in gaol she organised what can only be described as a raid on the home of the paternal grandmother.

7. The day after the incarceration of the father, the mother and two of her female relatives arrived at the home of the paternal grandmother. The mother entered the home and grabbed the child. There was a violent attack on the paternal grandmother and the mother then left.

8. That incident was described in the ex-tempore reasons for judgment in September 2016[7] as follows:

   17.There is a description in the COPS notes of what the police recorded, and were told by the paternal grandmother. That a vehicle entered into the driveway of the grandmother’s property, that the paternal grandmother opened the closed rear door and was confronted by the mother, standing in the doorway, who then pushed her way in. There was a violent struggle, with the grandmother quoted as saying, “Get out of my house. I have not asked you to come inside”. The child repeatedly yelled, “No, no,” and did not want to leave. [Ms Tracey] yelled out to [Ms L], “F-ing cunt, just hand him over or I’ll shoot you”. This continued until there was actually a physical fight between the women. One of the women grabbed hold of the child and removed him from the house.

   18.The mother made no reference to this incident in her supporting affidavit, although it is in her November 2015 affidavit, which I was requested to read.

   19.The version given in that affidavit is much less violent and asserts the mother had a more passive role. However, tendered into evidence was a copy of the bond for 12 months to be of good behaviour. The bond was imposed on the mother on 11 August 2016, in respect of the mother’s offending on that day in November 2015.

   20.Whether there was a hearing or a plea of guilty, the mother was convicted of the offence recorded in exhibit 9, including assault.

   21.It must have been a frightening and confronting experience for the child. It was certainly, whatever happened, disrespectful of the paternal grandmother and her reportedly terminally ill partner, who was unable to assist her on that occasion.

   22.The maternal grandparents were then contacted by police, who were searching for the child. The maternal grandparents denied that he had been there. The police recorded that they believed otherwise.

   23.On 26 November 2015, the mother contacted police, and the child was returned by the police to the paternal family over the mother’s opposition. He then lived with his aunt and uncle until very recently.

   [7] Ex-tempore Reasons for Judgment dated 29/09/2016, pars 17-23

1. The mother was charged with assault and convicted. The conviction was later quashed.

2. Police attended on the home of the mother immediately after the removal of the child, collected him and returned him to the home of the paternal grandmother.

Mother files fresh application for final orders

1. Four days later, on 30 November 2015, the mother filed an Initiating Application in the Federal Circuit Court for sole parental responsibility and for the child to live with her.

Transfer to Family Court

1. In December 2015 the application of the mother was transferred to this Court.

Interim Orders 24 December 2015

1. On 24 December 2015 the paternal great aunt and uncle applied for, and were granted, leave to intervene.

2. The June 2015 Orders were partially suspended. Orders pending further order were made providing for the child to live with the paternal relatives.[8]

   [8] Orders by Justice Austin dated 24/12/2015

3. The paternal great aunt and uncle did their best for the child, arranged for him to have the counselling which he obviously needed after the assaults on him in 2014 which will be referred to later in this judgment.

4. This placement failed, due to the uncontained behaviour of the child, probably encouraged by the mother as a means of undermining that arrangement.

5. In February 2016 the father was released from gaol and the child either returned to live with him soon after or spent increasing periods of time with the father whilst remaining in the home of the paternal great aunt and uncle.

6. On 7 March 2016 the paternal grandmother filed a Response supporting the child living with the paternal great aunt and uncle or with the father.

Consent Orders

1. On 11 March 2016 the Contravention Application of the Mother was held in abeyance pending determination of parenting proceedings.

2. On 14 April 2016 the father filed his Response which confirmed his proposal that the child continue to live with him.

Mother files application for Interim Residence – July 2016

1. On 18 July 2016 the mother filed an interim application for residence of the child with her. This was in response to the paternal great aunt and uncle indicating that they would withdraw as parties from the proceedings.

2. On 22 September 2016 Ms J, the father’s former partner, filed an affidavit in support of the mother. Her affidavit consisted of multiple allegations of family violence by the father directed at herself and animals on the property.

3. This evidence was entirely inconsistent with the evidence that she had given in the trial in May 2015 which gave rise to the June 2015 orders. She had been a supportive witness for the father.

4. On 29 September 2016 the applications for contravention filed by the mother on 27 August 2015 and 6 July 2016 were withdrawn and dismissed.

5. The orders of 24 December 2015 were discharged. That put an end to parental responsibility for the paternal great aunt and uncle and to their authority as to how and when the child spent time.[9]

   [9] Orders and Ex-tempore Reasons for Judgment dated 29/09/2016

6. The interim application of the mother for residence was dismissed and the matter was listed for directions for further trial.[10]

   [10] Ex-tempore Reasons for Judgment dated 29/09/2016

7. The mother lodged an Appeal and applied for expedition.

8. On 4 November 2016 the application for expedition of the hearing Appeal was dismissed.[11]  The Appeal was later withdrawn or abandoned.

   [11] Reasons for Judgment dated 4/11/2016

Paternal grandmother amends her application

1. On 11 November 2016 the paternal grandmother filed her Amended Response seeking an order that in the event the father was incarcerated (after another attendance in the Local Court looming for the father in January 2017) that the child live with her.

2. In April 2017 the parties and the child were interviewed for a further Family Report.

Contravention Application by Mother

1. In June 2017 the mother filed a further Contravention Application.

Interim Application for residence-Mother

1. On 4 August 2017 the mother filed a further interim application for sole parental responsibility and residence.

2. The Department intervened in the proceedings and the matter was set down for trial.

3. From October 2017 the Department became involved in arranging supervised time between the child, his mother and sister. The legal representatives for the mother withdrew at that time.

4. On 7 November 2017 by consent, both parties were restrained in respect of certain conduct and enjoined to cooperate with the Department.

5. By the date of this trial the father had again been charged with an offence in respect of a drug, methamphetamine, and has been called up to be re-sentenced in respect of a prior bond. There were appearances in the State courts in March and April 2018 in respect of those matters. The father was apparently not incarcerated.

6. In April 2018 the father, his current partner their child and C moved to their current address in I Town. The child is now attending the local school there.

Evidence

1. The documents relied on in respect of the application were as follows:

   The Applicant Mother

   (a)Amended Initiating Application filed 11/12/2017;

   (b)Affidavit of the mother filed 17/01/2018;

   (c)Affidavit of Ms J filed 17/01/2018;

   The Respondent Father

   (d)Response filed 2/02/2018;

   (e)Affidavit of the father filed 2/02/2018;

   (f)Affidavit of S filed 2/02/2018;

   Second Respondent Paternal Grandmother

   (g)Orders (contained in Statutory Declaration) dated 2/02/2018;

   (h)Affidavit of the paternal grandmother filed in Court 27/02/2018;

The Intervener

(i)Response to Initiating Application filed  6/11/2017;

(j)Affidavit of Ms X, Caseworker filed 19/01/2018;

The ICL

(k)Affidavit of Rodney Powe (ICL) filed 23/02/2018;

Reports

(l)Family Report dated 21/04/2017.

Oral Evidence

The Applicant Mother - Ms Tracey

1. There is no doubt that the mother loves her three children and desperately wants them all to live with her and each other. Unfortunately her means of achieving that goal reveal limits to her capacity to meet at least the two older children’s needs.

2. The mother has been found by two judges to have deliberately interfered in the relationship between B and the father, discouraging and ultimately extinguishing it.[12]

   [12] Reasons for Judgment dated 25/06/2015, par 90

3. In relation to C she has attacked his father [2012] and paternal grandmother [2015] in his presence, in the course of reclaiming the child into her care.

4. The mother has a history of acting impulsively and aggressively. She has a criminal record including assaults, resist police and an anti-social offence, drive unlicensed. Her language when angry is coarse and profane.

5. The mother expressed regret for the occasions when she had forcibly removed C from his home without prior notice to him or those caring for him. She acknowledged that the impact on C from age five had been traumatic.

6. The mother had not apologised to the paternal grandmother for her conduct in the 2015 incident or otherwise made amends with her, rather she just tries to avoid her.

7. However the underlying belief of the mother is that C should live with her. She has been unable or unwilling to accept the decision of the Court three years ago that he should live with his father.

8. The attitude of the mother to the restraint on C being brought in contact with his cousins reveals her indifference to orders. Her evidence was that C would return to his school, Y School. Her solution to preventing contact between the cousins who live with the maternal grandmother and travel to school in the same direction was that C could travel on a different bus.

9. My overall impression of the mother is that she avoids trouble and things that are hard. By March 2018 the mother had still not asked what C had told the police about what his cousins did to him. Her response to the question “Why not?” was, “This is why I’m doing this sex abuse course, to learn how to speak to C about these allegations”. The mother was pressed about when she had started the course. Her answer “I’m waiting on dates” revealed the untruthfulness of her previous statement.

10. The mother was crying when she revealed what she did know about the assaults but it is apparent that she has not acted to help C or confront the cousins who assaulted him. Nor was there evidence of any conversation between the maternal grandmother (with whom the cousins live) and the mother, about how to manage the risk for the subject child when he is in her care.

11. The maternal grandparents did not provide an affidavit or give evidence which could have assisted the Court as to their own present commitment to current orders.

Ms J - former partner of the Father

1. Ms J was not a convincing witness. She conceded that her evidence in support of the mother was in conflict with the evidence which she had given in support of the father in the 2015 final hearing.

2. She conceded that there was no criticism of any conduct of the mother in her current affidavit because she supports the mother now.

3. She claimed she was unable to remember an event when she was living with the father in 2012 where the mother entered the house and struck the father. Ms J made a contemporaneous statement to police[13] where she set out in detail a vicious attack by the mother on the father leaving him with a split lip and impact to his eye. The mother is also reported by Ms J to have hit C on the top of the head causing him to “let out a scream.”

   [13] Exhibit 8

4. When taken to the statement Ms J agreed that it was true but she had not put it in [to her affidavit].

5. Later Ms J was asked about the evidence of the mother in the 2015 trial that the father had beaten Ms J so severely that she went to hospital. Ms J denied the assault and any hospitalisation.

6. Ms J gave an account of the violence of the father towards her during their separation and the events leading up to it. She was most distressed. It was apparent that Ms J was adversely impacted by the separation and that her view of the father had changed to a darkly negative one.

7. Ms J would have been a more credible witness in this trial had all relevant incidents whether apparently critical of one parent or the other had been included in her affidavit.

The Respondent Father – Mr Wilkes

1. The father is a taciturn man. His language as evidenced by texts he sent to Ms J can be horribly rude and insulting.

2. The father agreed he had allowed C to sometimes choose not to see his mother, “C’s choice. I backed him up.”

3. In that way he shares the indifference of the mother to Court orders.

4. The father has an anti-social criminal history, much more extensive than that of the mother of offences such as driving unregistered vehicle, drive disqualified, possess prohibited drug and assault.

5. The paternal grandmother gave evidence that to her knowledge the father had attempted to grow some marijuana (for which he was arrested in 2015) for the medicinal benefit of her terminally ill partner. That may be so.

6. The father conceded that in that respect he was a poor role model for C.

7. He denied any assault on Ms J and was firm in his assertion that the mother and Ms J had made up harmful stories about him. That is confirmed to some extent by Ms J’s denial of what the mother said in 2015 about the father beating Ms J up and putting her in hospital.

8. In relation to the worrying allegation that the father had tested positive for methamphetamine in 2017 the father agreed that a test he did for Probation and Parole in Z Town had come back positive. He asserted that a second test 20 minutes later came back clean. That test was not available. The father was representing himself. It is unclear.

9. A test on 15 August 2017 also came back positive. The father offered bland denial “I wasn’t on anything.” On balance it seems more likely that the father had used that drug prior to that test despite his denial.

10. Use of such a drug undoubtedly represents a risk to the child in terms of the effect on the father while the child is in his care and the association with those who supplied the drug.

S - the partner of the Father

1. Ms S was a calm and forthright witness.

2. Ms S had read in the Family Report C’s statement that she, Ms S, called him a dickhead and he did not like it. She explained that she had used that term also “deck-head” and “duck- head” in a joking way not intended to be malicious. She said and I accept that she did not say those words any more.

3. Ms S spoke with real affection about C:

   We get along great, go shopping, he tells me he loves me, which is wonderful.

4. She also spoke about discipline: “I hold him responsible for picking up his wet towel and putting his clothes away. He’s the kind of kid who needs to be told things”.

5. I take from this that Ms S has engaged with the child and genuinely cares about his welfare.

6. I conclude that she has by no means attempted to take over the parenting role. When asked about counselling for C [for abuse] Ms S made two thoughtful remarks, first that she was not sure how much counselling he had had and next that “he was more comfortable talking to his Dad”.

7. Unfortunately Ms S shared the view of both parents that it was up to C whether orders were complied with: “It was C’s choice not to go”, “He wouldn’t take the phone. He refused. If he was coaxed he’d become upset.”

8. The implications for C’s family relationships are unhappy ones. He will continue to feel the pressure of deciding whether to do what adults know that orders say he must do. He should be firmly reassured that the decisions are not his to make.

The Paternal Grandmother - Ms L

1. The paternal grandmother presented as a loving and concerned grandparent. C has regularly spent weekends and holiday times with her.

2. She described him in this way:

   [C] is a very affectionate and loving child. Smart. Witty personality. Loves art and making things… Well mannered, can be a bit cheeky, a well-adjusted child.

3. She knew the child was misbehaving at school and was concerned by it. She has seen C saying “no” to access visits and had “spoken to [Mr Wilkes] [the father] about it”. I infer from that and her evidence that “if he went screaming, that’s something that has to happen” the paternal grandmother understood that orders were to be complied with and that the burden of choice should not be imposed on the child.

4. She described disrespectful anger and mood swings for the child after he returned from seeing his mother. I conclude that the paternal grandmother understands how torn C is between his two warring parents.

5. The paternal grandmother has rules and holds C and her other grandchildren to them. There are consequences and the child knows that.

6. I conclude that the child has a solid base of love and support from his paternal grandmother.

Case Worker – Department of Family & Community Services - Ms X

1. Ms X was the caseworker for C until early in 2018.

2. Sadly what emerged from the evidence of Ms X was that C has not been referred for sexual assault counselling. There is an available service for a child and a parent or carer to be referred. The Department attempted to refer the mother. This was unsuccessful because “She did not have a full understanding of the assault on [C]”. The Department did not attempt to refer the child and his father because the service wanted “continuity of orders”. The fact of these proceedings precluded a referral because there might be a change of residence.

3. The practical consequence for C is unhelpful to him. He participates with his class in “emotional regulation training” which appears to be directed to behaviour. C is said to have been bullied at school then responded with violence and aggression. He has not had the opportunity to discuss what happened to him, what consequences there were for the family members who assaulted and degraded him, and how to understand family reactions.

4. I note that C confided in his father after the assaults in 2014.

5. Until then there had been five years living with his mother post-separation where he had visited his father and been returned. After C told his father what had happened to him his father retained him and has been resolute.

6. The father has many failings but there is no doubt he has been protective of the child.

The Law

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

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

   b)Children are protected from physical and psychological harm;

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

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

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

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

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

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

Parental Responsibility

1. The mother presses for sole parental responsibility. The father by asking for the 2015 orders to be confirmed, seeks the same for himself.

2. The evidence supported a finding in 2015 that there was family violence to which the child and his sister were regularly exposed.[14] Since then the mother has exposed the child to family violence which included his paternal grandmother being assaulted. The separation of the father and Ms J was a tumultuous time with at least verbal and probably physical violence. The presumption of equal shared responsibility continues not to apply.

   [14] Reasons for Judgment dated 25/06/2015, pars 46-58

3. There is such hostility between the parties after nine years of separation that I can comfortably conclude that the parents are incapable of consulting about long term decisions or reaching a compromise where there are differing views.

4. There were findings in 2015[15] about the conduct of the maternal grandparents, their dismissive attitude to the events around the child and his cousins, their negative attitude to the father. Given that neither grandparent provided an affidavit in support of the mother there is no evidentiary basis for further findings.

   [15] Reasons for Judgment dated 25/06/2015, pars 70-74

5. The father has the capacity to make good long term decisions about the child but his anti-social behaviour at times leads to trouble for him which impacts on the child. The most glaring example is the father being gaoled in late 2015/early 2016 for breach of AVO and having marijuana plants.

6. On that occasion the paternal family stepped in with arrangements negotiated by the paternal grandmother. At that time the grandmother herself was still suffering the effects of the death of her partner and from ongoing anxiety arising from the mother’s intrusion into her home in order to abscond with the child.

7. The paternal grandmother is entirely capable of making good decisions about the long term welfare of the child. She has a good relationship with the father although she is frustrated by his reckless conduct. She is clear sighted about his deficiencies as a parent and warmly appreciative of his strengths.

8. I conclude that there is a clear benefit to the paternal grandmother having parental responsibility for the child as well as the father. I am confident she will step up when needed to make decisions or provide day to day care but otherwise take an interest in his life in the way grandparents can do.

Primary Considerations

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

1. On balance I consider that the exclusion of one parent from the life of this child would create greater emotional harm than continuing the arrangement for him to live with one parent and spend time with the other.

2. Living with his father has been protective but not without disruption. Since 2015 C has changed schools, lived with other family members while his father was in gaol and been present for the ugly break-up of the father and Ms J.

3. Spending time with his mother has been mostly a happy experience for him. Being taken from his grandmother’s home by his angry, vengeful mother has made him anxious. Also the fact that he was immediately exposed to his maternal grandparents and cousins. He has resisted time with his mother and been permitted not to go.

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

1. There is a need to protect this child from further physical or psychological harm, but no clear path for doing so. Court orders can only minimise the risk.

Additional Considerations

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

1. C has expressed his views during interviews for Family Reports on three occasions:

   Report 1 – 21 July 2013, aged six;

   Report 2 – 8 October 2014, aged seven;

   Report 3 – 21 April 2017, aged almost ten.

Report 1 - 2013

1. C is reported to have volunteered this information:

   “Stay with mum, my mum said that it would be good to stay with my mum.” The family report writer considered that the mother may have been coaching the child.[16]

   Otherwise the child was positive about each of his parents, “[C] responded that he would talk to both his parents if he were feeling sad because he loves them.”[17]

   [16] Family Report dated 21/07/2013, par 105

   [17] Family Report dated 21/07/2013, par 115

2. C was happy with arrangements in place then, wanted to live with his mother and spend time with his father. The mother had refused to bring B to the interview, due, it was said, to her sports carnival.

3. The mother and the maternal grandmother both reported that B did not want to see the father. C’s relationship with B was then, and has been since, important to him.

Report 2 – 2014

1. By this time, C had a new half-brother aged 11 months. The first child of his father’s relationship with Ms J.

2. C was asked if his mother said anything about coming to the interview. C is reported to have replied “Mum said make sure you tell her you want to live with me … I’m not sure because I love them both … it’s pretty hard for a kid isn’t it?”[18]

   [18] Family Report dated 8/10/2014, par 154

3. The Family Consultant expressed the opinion that the mother had made deliberate attempts to influence both C and B to reject the father. C stated “When I’m at mum’s place I look at dad’s pictures when I’m upset that that makes me cry more”.[19]

   [19] Family Report dated 8/10/2014, par 155

4. C reported hitting, kicking and punching his sister B and getting into trouble for it, “Mum gets angry and mum yells at me”.

5. The Family Consultant expressed the opinion that the mother had systematically and deliberately sought to fracture B’s, and to a lesser extent, C’s relationship with Mr Wilkes.[20]

   [20] Family Report dated 8/10/2014, par 170

6. Findings were made in respect of the 2015 orders as follows:[21]

   [21] Reasons for Judgment dated 25/06/2015, pars 96-100

   96.Even though the mother’s alignment of the youngest child against the father was not quite so pronounced, she still sought to exert her place as his primary carer. She boldly coerced him to express a wish to live with her, which he then repeatedly did to both the Family Consultant and the father. The mother said in cross-examination she did not tell either child to say they wanted to live with her, but I do not accept her evidence as truthful.

   97.The evidence disclosed the mother attempted to sabotage the child’s visits with the father, just as she had done with the eldest child. The youngest child reported to [Ms J] in October 2014:

   …mum and [the eldest child] said to punch, scratch and kick if you try and put me in the car.

   Mum and [the eldest child] said if you’ve got me in the car try and get out of the car and run to nan and pop but I didn’t want to do any of that because I love you all the same.

   98.The Family Consultant concluded the mother engaged in “deliberate parental alienation” and influenced both children to reject the father, which opinions coalesced in a conclusion she expressed thus:

   …when a parent is deliberately seeking to fracture the relationship between a child and their key attachment figure for reasons other than the child’s safety, it is considered psychological abuse and in the most severe cases it is recommended that the child be placed in the care of the other parent to protect the relationship. In this case there appears to be a multitude of evidence that appears to imply that [the mother] has systematically and deliberately sought to fracture [the eldest child’s], and to a lesser extent [the youngest child’s], relationship with [the father].

   99.It is unnecessary to speculate whether such abusive behaviour is liable to constitute “serious psychological abuse” and thereby render it a form of “abuse” (s 4), which elevates the conduct to a level requiring primary consideration under s 60CC(2)(b) of the Act. It is a serious feature of the case whether considered under that sub-section or under s 60CC(3) of the Act.

   100.The mother’s adverse views about the father and the undesirability of the youngest child’s relationship with him were endorsed by the maternal grandmother. She told the Family Consultant – not once, but twice – she did not think the youngest child should spend any time with the father. She said in cross-examination her view had not changed.

Report 3 – 2017

1. C had had a tumultuous time since the previous report.

2. In 2015 another child U had been born to the father and Ms J. Also his mother had a child P early in 2015 to her new partner Mr Q.

3. In June 2015 orders were made for C to live with his father and spend time with his mother subject to certain restraints.

4. In September 2015 C experienced the end of the relationship between his father and Ms J. C experienced the loss from his life of Ms J and his two little brothers at that time.

5. Another heavy loss for the child followed. The father was arrested in respect to breach of an AVO relating to Ms J and for possession of marijuana plants. In 2015 the father was gaoled and remained in gaol for three-four months. C moved to live with his paternal grandmother.

6. Almost immediately the mother attended unannounced with two female relatives and invaded the home of the paternal grandmother to remove the child.

7. Soon after the police attended at the home of the mother, removed the child and returned him to the paternal grandmother. The paternal grandmother was quite severely affected by the events involving the removal of the child, not only because of the assault on her but because her partner at that time was severely ill and had been present during the event and unable to assist.

8. Paternal relatives were called on to assist in the circumstances, Ms M and Mr L (“Ms M and Mr L”).

9. On Christmas Eve 2015 orders were made which had the effect of placing the child in the care of Ms M and Mr L. That placement did have some benefits for him; counselling for him began in respect of the events in 2014 which had been no doubt destructive for him and unaddressed, that is that he on more than one occasion was molested and sexually assaulted by one or two of his cousins and forced into degrading conduct (eg eating faeces).

10. Ms M and Mr L were concerned about his behaviour at school and his sexualised behaviour exposing himself at school and at a social event to a very young female child. Oblivious to that good work, the mother was offended by the removal of the child into their care, the child’s behaviour was so disruptive and uncontained that the paternal relatives reluctantly withdrew from pressing on with their final application to have the child live with them.

11. One of the saddest side effects of that decision was that when the father returned from gaol the child was back in his care and there was no discussion about or reference to the counselling which had begun for C.

12. In 2016 the child started at a new school, Y School in I Town.

13. In February 2016, the father was released from gaol and the child returned to his care whilst continuing to spend periods of time with the paternal family, Ms M and Mr L and the paternal grandmother.

14. In 2016 a child was born to the father and S. That was an event no doubt of significance to them, but it seems that the child did not know that this child was his father’s because the two adults had not lived together.

15. Later in 2016, September or October, the father and Ms S committed to a relationship and have lived together since that time.

16. In my view, by the time of the interviews for the Family Report in April 2017 the child could have felt no certainty about the future course of his life at all. Further, no confidence about where he would be living and who he would be spending time with.

17. C reported to the Family Consultant that he enjoyed his school and had friends there. He liked his mother’s new partner and enjoyed going with his mother to visit him. He reported missing Ms J and his two little brothers. He was not so positive about his father’s new partner and still really did not understand that her child T was his father’s child and therefore his brother.

18. At that point he had been seeing his mother regularly. He reported having fun at his mother’s house and particularly enjoyed seeing his sister B.[22]

    [22] Family Report dated 21/04/2017, par 106

19. C expressed the view that he had expressed as a five year old that he would like to live with his mother and see his father often. He said that he was worried about what his father would think.

20. Although C reported that his mother told him she did not care what he said [to the Family Consultant] I cannot be confident given the pressures from the mother reported by the author of the two earlier reports and the findings of the trial judge in 2015, that this is the case.

21. C has also expressed his views to the ICL who filed an affidavit in February 2018[23] setting out the conversations in which those views are expressed. C was aged 10 years and eight months.

    [23] Affidavit of Rodney Powe dated 23/02/2018

22. The ICL has met with the child and his older sister many times over at least the past four years. The last meeting was on 21 February 2018. C was said to be well presented but appeared anxious. He said he was happy about having seen his mother for four short visits during the holidays. He said his father was in the vicinity on the first three occasions. The child said he missed his mother and B and P [the mother’s three year old child] but if he had to choose he wanted to live with his dad. Importantly, the child said in response to a question from the ICL that he remembered being removed from his paternal grandmother in November 2015 and that “Mum took me to their old house where nan and pop, all the cousins were there ([G, F, BB, BB, K]). The child ended on this note, “… sometimes I just want to cry. I am all churned up inside and I am crying”. He is reported to have been adamant that he wished to stay living with his father. Given the longevity of the relationship between the child and the ICL and the trust clearly established I give considerable weight to the view expressed.

23. C is now in Year 5 and has been fought over by his parents at least since 2012. The mother has arrived without notice or invitation twice in 2012 and 2015, grabbed the child, first from the father and on the second occasion from the paternal grandmother, and removed him into her care. The father has chosen not to comply with orders more often than not since the 2015 Final Orders were made.

24. Despite everything the child still expressed the wish that children of separated parents so often do, if he had a magic wand he would want “Mum and Dad not to fight, Mum and Dad to like each other and be friends.”[24]

    [24] Affidavit of Rodney Powe dated 23/02/2018, page 4

25. Annexed to the affidavit is a handwritten note by the child. His spelling and handwriting meant that I asked each of the parents and the father’s partner Ms S to read the note. The circumstances of the child preparing his thoughts in writing in order to see the ICL and the fact that all the matters contained in that note are criticisms of the mother he loves lead me to the conclusion that I should give the note little weight.

26. With good intentions, Ms S suggested to the child that he write down the matters that he wanted to remember to talk to the ICL about. I am satisfied that by this stage C understands his family as two hostile camps so he does not make positive statements about family members in one camp to members of the other.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. C loves his parents. That has never been in doubt. He has at times felt neglected by his father whose time he values and craves. He has felt hurt by his mother who laughed when he told her about his cousins’ assaults on him and has not discussed it with him since.

2. He also loves and misses his sister B. Their relationship as brother and sister has been a casualty of the parental attitudes. For the first few years after separation of the parents both children spent time with the father. B was not supported by the maternal family in that relationship, with the man she had known as her father, continuing. The father withdrew his application in respect of B in the 2015 hearing, understanding her situation.

3. C is also very well loved by members of both extended families. He spends regular time with his paternal grandmother.

4. C has a preschool age brother in the household of each parent. He knows the current partner of each parent and probably gets along well enough with his mother’s partner as she asserts. Mr Q did not provide an affidavit or give evidence.

5. He has lost the relationship he had enjoyed with Ms J and his two half-brothers, (now aged five and three) of that union. There was a parenting hearing before me in that matter which proceeded undefended when the father did not attend the hearing.[25]

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

[25] Judgment in the matter of Emmings & Wileman [2017] FamCA 940 dated 7/11/2017

1. The intervener proposed that the child live with his mother and spend supervised time with his father. I do not accept that proposal as being in the child’s best interest. The concern about the father being a perpetrator of family violence is legitimate. He has been.

2. However the mother is also a perpetrator of family violence both during the relationship between the parties and since. To move the child back to living with his mother is, in my view, to place him at unacceptable risk of harm in two ways. First, he is likely to quickly lose his relationship with his father. The mother has not accepted the legitimacy of his residence with the father. Next, he will continue to be at risk of being mistreated by his cousins with no one in the maternal family likely to report any such wrong doing to authorities.

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

1. Both parents have limitations on the capacity to meet the needs of the child.

2. The most significant deficit is recognition of the child’s need to love and spend time with the other parent. Either the parents do not understand, or do understand but do not care, that orders must be complied with. This is not for the sake of being seen to comply but to ensure the protection of the relationships by removing from the child the pressure to decide when and if he will see the other parent.

3. The party who most clearly understands this obligation is the paternal grandmother. Not only that, she will do everything she can to make it happen.

If the child is an Aboriginal child or a Torres Strait Islander child

1. The child is an aboriginal child. The attitude of the parents to that was analysed in 2015.[26]  Nothing has changed in that regard.

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

[26] Reasons for Judgment dated 25/06/2015, pars 109-112

1. There have been an immense number of applications about the parenting arrangements for C since 2012 and approximately 15 sets of orders.

2. C is 11 years old. He will soon be at high school and moving towards independence over the following years. A lot that is painful and upsetting has happened to him. He would benefit if his parents supported him, took a genuine interest in his achievements, were respectful of the others important to him and stopped fighting in the courts to change court orders.

3. An order to restrain applications being filed without prior leave of the Court may be the solution if applications continue to be made. C needs relief from police intervention, being interviewed for court reports and questioned by family members.

Conclusion

1. I have come to the conclusion that the child should continue to live with his father and that the 2015 orders should largely prevail.

2. The ICL proposed that the child live with the paternal grandmother. However willing as she is to assist the child the paternal grandmother does not wish to take on the role of full-time parent. For any future periods when the father is unavailable to him the child should live with the paternal grandmother.

3. The paternal grandmother is a person capable of making good decisions in a child focused way. She understands and will support the emotional need of the child for a relationship with each parent and B. For that reason provision has been made for the paternal grandmother to have parental responsibility in addition to the father.

4. Orders are made accordingly.

I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 August 2018.

Associate:

Date:  24 August 2018