Turner and Chaconas and Ors

FAMILY COURT OF AUSTRALIA

TURNER & CHACONAS & ORS

[2016] FamCA 821

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother has some limits on capacity as a parent – Where the children reside with the paternal grandmother – Where the paternal grandmother seeks sole parental responsibility for the children – Where the mother proposes graduating time until the children are returned to her care – Where the father does not apply for parenting orders – Where the father supports the application of the paternal grandmother – Where the maternal grandmother supports the mothers application – Where the maternal grandmother previously supported the paternal grandmother caring for the children – Where each party has been affected by drug and alcohol abuse – Where each party has been affected by mental health problems – Where each party has been exposed to violence – Where the mother concedes to struggling with addiction in the past – Where the mother admits to needing assistance with the children in the past – Where the mother has shown a commitment to raising the children – Where the mother has taken steps to improve parenting capacity – Where the paternal cousin supports the mother – Where the paternal grandmother has become a significant part of the children’s lives – Where the paternal grandmother has not appropriately facilitated time for the children with the mother – Where the co-parenting relationship is poor between the mother and paternal grandmother – Where the child does not have the maturity to express their wishes – Ordered that the mother have sole parental responsibility – Ordered that there is a transitional period to assist the children – Ordered that the children spend time with the paternal grandmother – Ordered that time between the children and the father be supervised by the paternal grandmother

Family Law Act 1975 (Cth), ss 60CC, 64B, 68B

APPLICANT:

Ms Turner

FIRST RESPONDENT:

Mr Chaconas

SECOND RESPONDENT:	Ms Jillet
THIRD RESPONDENT:	Ms Connor
INDEPENDENT CHILDREN’S LAWYER:	Krstina Wooi

FILE NUMBER:

(P)NCC

1038

2015

DATE DELIVERED:

28 September 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

29 August – 2 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilkinson

SOLICITOR FOR THE APPLICANT:

Winder Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Not Applicable

SOLICITOR FOR THE FIRST RESPONDENT:

Not Applicable

COUNSEL FOR THE SECOND RESPONDENT:	Mr Davies
SOLICITOR FOR THE SECOND RESPONDENT:	Williamson Isabella Lawyers
COUNSEL FOR THE THIRD RESPONDENT:	Mr Murray
SOLICITOR FOR THE THIRD RESPONDENT:	Toronto Legal
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Graham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Krstina Wooi

Orders

That all prior parenting orders in relation to B born … 2010 and C born … 2014 (“the children”) are discharged.

Parental Responsibility

That until 17 January 2017 the paternal grandmother and the mother shall have equal shared parental responsibility.
That from 17 January 2017 the mother shall have sole parental responsibility.

Residence

That until 17 January 2017 the children shall live with the paternal grandmother.
That from 17 January 2017 the children shall live with the mother.

Spending time and communication

Time with the mother

That until 17 January 2017 the children shall spend time and communicate with the mother as follows:
(a) During the third term holiday 2016:
(i)For one period of two days and one night:
A.Friday 30 September 2016 at 11.00 am to Saturday 1 October 2016 at 3.00 pm;
(ii)For one period of three days and two nights failing agreement otherwise:
A.Wednesday 5 October 2016 at 11.00 am to Friday 7 October 2016 at 3.00 pm;
(b)Thereafter, each alternate weekend from 11.00 am on Saturday to 3.00 pm on Sunday as follows, commencing:
(i)15 and 16 October 2016;
(ii)29 and 30 October 2016;
(iii)12 and 13 November 2016;
(iv)26 and 27 November 2016;
(v)10 and 11 December 2016;
(c) Thereafter during the Christmas School Holiday period in 2016/2017:
(i)23 to 28 December 2016; and
(ii)4 January 2017 to 10 January 2017.

Changeover 17 January 2017

That on Thursday 17 January 2017 the paternal grandmother shall deliver the children to the home of the mother and thereafter, the children shall live with the mother.
Changeovers of the children for the period until January 2017 shall take place in the Country Trains concourse of Central Railway Station unless a different venue is agreed by the mother and paternal grandmother on any occasion.

Time with the paternal grandmother

That from 17 January 2017 the children shall spend time with the paternal grandmother as agreed between the mother and the paternal grandmother but failing agreement otherwise, not less than one weekend per calendar month in Newcastle from 10.00 am on Saturday to 5.00 pm on Sunday extending to before school Monday if the paternal grandmother elects in advance to have that extended period.
For one week of two of the three term holidays and for two weeks at Christmas to include Christmas Day in each alternate year commencing Christmas 2017.

Time with the maternal grandmother

From 17 January 2017 the maternal grandmother shall spend time with the children as agreed between the mother and the maternal grandmother but failing agreement not less than two Sundays per calendar month from 10.00 am to 5.00 pm.

Time with the father

On any occasion that the father is present in the home of the paternal grandmother when the children are spending time with her the paternal grandmother shall:
(a) Supervise the time between the children and the father;
(b) Keep the mother advised of such time taking place in her home.

Restraints

That pursuant to s 68B Family Law Act the father is restrained by injunction for the personal protection of the mother from:
(a) Contacting and approaching the mother in any circumstance;
(b) Attending, entering, remaining in:
(i)The home of the mother at D Street, Suburb E and any subsequent residence;
(ii)Any place of employment of the mother;
(iii)The home of the maternal grandmother.
And is further restrained by injunction for the personal protection of the children B and C from attending, entering or remaining in Suburb E Public School and any preschool in which C is enrolled.
Each party is restrained from using corporal punishment on the children, or either of them, and is further restrained from permitting any third party from doing so.
Each party is restrained from criticising any other party and friends and family of that party in the presence and hearing of the children, or either of them.

Specific Issues

That the mother shall authorise the primary school and preschool which the children attend to provide to the paternal grandmother (at her expense if any) copies of all documents relating to the progress and welfare of the children at school, including but not limited to, school reports, school newsletters and applications for school photographs.
That after the children come to live with the mother, that the mother shall keep the paternal grandmother advised of any illnesses and accidents requiring hospitalisation or specialist medical treatment.
The paternal grandmother shall authorise all current treating medical, dental, other practitioners of the children, to release to the mother information relating to the health of the children and/or to release information and documents to practitioners for the children in the Newcastle area nominated by the mother.

Education

That the mother may forthwith enrol B for the 2017 school year at Suburb E Public School.
The mother shall provide a copy of these orders to the principal of Suburb E Public School.

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 Turner & Chaconas and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 1038 of 2015

Ms Turner

Applicant

And

Mr Chaconas

First Respondent

And

Ms Jillet
Second Respondent

And

Ms Connor
Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders in respect of two children, a girl B aged six and a boy C aged two years 9 months.
The children presently live with the paternal grandmother in F Town on the South Coast of New South Wales. The have lived with her in that area for the past 18 months.

The Parties

The Applicant – the Mother

The mother Ms Turner is aged 27 years. She lives alone in a rented property provided by an organisation known as G Housing in the suburb of Newcastle. Until recently she lived with a close friend Ms H, and that friend’s partner.
The mother has a partner of one year, Mr I. They do not live together but may do so in the future. Mr I did not give evidence.
The mother is unemployed. She has a childhood history of neglect and exposure to impaired parenting growing up and of aggressive behaviour by herself as an adolescent. She has been the victim of assaults, perpetrated by the father over the five years of their relationship between 2009 and 2014.
The mother says she suffers from depression, anxiety, Post-Traumatic Stress Disorder and perhaps Attention Deficit Hyperactivity Disorder. The mother also has scoliosis which results in episodic back pain. I have no reason to doubt assertions about her health which were unchallenged. There was no medical evidence.
The mother currently has the benefit of an Apprehended Violence Order (“AVO”) for her protection from the father. That order expires in May 2017.
The application of the mother is for the return of the two children to her care. She proposes an increase of time for the children with her over the following four months until full residence is established by mid-January 2017. She proposes time for the children with the paternal grandmother and the father as agreed between the parties. The mother was present at court and legally represented.

The First Respondent - the Father

The father Mr Chaconas is aged 27 years.
The father lives with, and is the carer for, the paternal grandfather, Mr J Chaconas, aged 52. The father lives with the paternal grandfather in the home of the paternal great grandfather. The father receives a carer’s pension.
The father says he has a diagnosis of depression, anxiety, and Panic Disorder for which he takes medication. There was no medical evidence.
The father was charged and convicted of assaulting the mother and in May 2015 was sentenced to an intensive corrections order. The father has a criminal history involving serious assaults dating back to age 14. He also has a history of abusing alcohol and illicit substances.
The father no longer applies for any parenting order. He supports the application of his mother for the children to live with her. The solicitors for the father ceased to act three weeks prior to trial. The father did not file a trial affidavit.
The father was present at Court unrepresented. He was cross examined and also had some questions for the other parties.

The Second Respondent - the Paternal Grandmother

The paternal grandmother, Ms Jillet, is 49. The paternal grandmother lives in F Town, close by to, but not with, her partner of almost ten years, Mr Jillet (her husband for almost six years).
The paternal grandmother has three adult children in addition to the father. Mr K aged 31 from her first marriage; he suffers from schizophrenia and is presently serving a sentence for a serious assault on one of the paternal grandmother’s former partners. The next adult child is Ms L aged 25; she has a five year old son and is in a partnership with a young woman who has a foster child aged four. The other adult child is Mr M aged 23 who is the father of one child.
There are no children of the marriage between the paternal grandmother and Mr Jillet.
The paternal grandmother took the children into her care on or around 9 March 2015. This was done by arrangement between the maternal grandmother, the maternal aunt and the paternal grandmother. It was done without the prior knowledge or consent of either of the parents of the children.
Immediately after the subject children came into the care of the paternal grandmother, she moved to F Town (approximately 250 kilometres south of Newcastle) to live with her husband. They had been re-establishing their relationship after a period of separation between September 2013 and March 2014. The two children have lived with the paternal grandmother and for some of that time Mr Jillet and his three children, for a period now of about 18 months.
From the time of the change of residence the children did not see their mother at all for nine months. They saw her briefly on Christmas Eve 2015, briefly for interviews for the Family Report in January 2016 and then regularly from the time interim orders were made in April 2016. Pursuant to those orders they have been seeing their mother each week.
The paternal grandmother opposes restoration of the children to the mother at least at this time. She seeks orders for sole parental responsibility and that the children live with her, that time with each of the parents and the maternal grandmother would be at her discretion as to regularity and the need for supervision.

The Third Respondent - the Maternal Grandmother

The maternal grandmother, Ms Connor, is aged 54 years.
The maternal grandmother moved to the South Coast area to be close to the subject children soon after the change of residence. She maintained a good, cooperative working relationship with the paternal grandmother and spent most weekends and other times with the children.
The maternal grandmother has recently moved back to the Newcastle area and is presently living with each of her adult daughters (including the mother) whilst she looks for suitable permanent accommodation either in the Newcastle or N Town area.
The maternal grandmother has two adult children in addition to the mother: Ms O aged 33 who is married with three young daughters and Ms P aged 25, who has a partner and an infant daughter.
The maternal grandmother separated from her most recent partner Mr Q when she left for the South Coast. She had previously been boarding in a house with him, owned by Mr Q’s brother.
The maternal grandmother does not enjoy good health. She has a history of trauma in her own life and illicit substance dependency.
She was on the opioid treatment program for 10 and a half years until April 2016. At that time, hospitalised for an unrelated illness the maternal grandmother was unable to access the opioid program and decided after a period of time that she would, on her own initiative, cease reliance on the program. She did so unsupported and described it as “the most difficult thing I’ve done in my life”.
The maternal grandmother has been protective of the children in two ways: By always being available to care for them in their early lives, which she regularly did, and also by arranging to have them safely cared for when she effectively became homeless in March 2015 at a time when the mother and children were relying on her for accommodation.
The maternal grandmother had previously supported the children remaining with the paternal grandmother. She remains on fairly good terms with the paternal grandmother although they have not been in contact since the maternal grandmother returned to live in Newcastle.
The maternal grandmother now supports the return of the children to live with the mother. She gave her opinion that the mother has really “turned her life around” and is ready to be a parent to them.

Issues

This is a case where each and every party has been adversely affected by abuse of drugs and alcohol, exposure to violence and mental health problems.
The central issue is the capacity of the mother and the paternal grandmother to meet the needs of the children, if those children are living with that party.
The secondary issues are:
a)The impact of family violence on the children and relevant others;
b)The impact of family violence on the mother at the hands of the father; and
c)The maintenance of relationships between the children, their parents and others.

History Of Relevant Events

The parties met in the first half of 2009. At that time, the mother was homeless. The mother moved in to live with the father in the home of the paternal grandfather in Suburb R in Newcastle. Within weeks the mother was pregnant with the first subject child.

Mother asks for help from the Department of Family & Community Services

On 18 March 2010 the mother, 8 months pregnant, asked the Department of Family and Community Services (“the Department”) for “general support around parenting.”
An assessment conducted by the Department concluded that there was domestic violence within the relationship noting,[1]
Father has own child protection history relating which included exposure to domestic violence, behaviour management issues, inadequate supervision, physical assault, abandonment, physical and verbal dv perpetrator as an adolescent towards his mother.
[1] Exhibit 15
The report also indicates that the parties were living with the paternal grandfather who was “noted to be a violent person and is alleged to have been the perpetrator of physical and verbal abuse against children”, “known to police for violence” and “has been charged with physical assault on several occasions”.
The report went on to note that the mother had been drinking during her pregnancy but had ceased use of amphetamines 12 months previously.
The family was assessed to be ineligible for the Brighter Futures program due to “information suggesting worker safety issues” for officers of the Department being involved with the parties and the paternal grandfather.
The concerns for worker safety given the history of the mother, the father and the paternal grandfather are entirely understandable. However this was an opportunity missed for the mother to be supported and educated in the care of her first child and on the impact of exposure to domestic violence for children and herself.[2]
[2] Exhibit 15

Birth of first child

In 2010 the child B was born. Soon after the mother moved away from the father with the child, although the father would stay in the mother’s accommodation from time to time.
In mid-2012 the two parents moved to a property rented through G Housing in Suburb S which is the property that the mother has again recently occupied. It represents stable accommodation.
In 2013 the parties conceived a second child.

Birth of Second Child

C, now almost three, was born in 2014.
In August 2014 the mother says that the father converted to, or perhaps invented, a form of religion known as “T-ism”. The father told the mother she had to wear a burka and when she said no he physically assaulted her by punching her in the arms, legs, face and torso. The children were not present at that time.

Relationship between parents end

In September 2014 the mother ended the relationship with the father. He remained in the G Housing house in Suburb S.
The mother and children, homeless, moved to stay with the maternal grandmother at this point, the mother was looking for help from her mother in the comfortable knowledge that help would be given as it always had been.

The maternal grandmother was boarding in a 3 bedroom house in Suburb U. She occupied one bedroom, her partner Mr Q another bedroom and the owner of the house, Mr Q’s brother, the third bedroom. There was not sufficient space for the mother and two very young children. It was inadequate accommodation.
The owner of the property worked long hours and preferred a quiet life although the maternal grandmother reported that he loved the two subject children. The maternal grandmother responded by containing the children as best as she could so as to minimise disruption to the household. C spent most of the day in a portable cot. The mother did not cope well with the care of the two children in those conditions.
In January 2015 the mother was told by her mother that the father intended to take the children into his care. The father enrolled B at a school of his choosing. The mother sought legal advice, removed the child from the school and applied for Legal Aid for a recovery order. Before the application could be filed, the father returned B to the mother’s care.
The father reacted with disproportionate anger to B being removed from school. He went to the home of the maternal grandmother and when not admitted, stood outside yelling for the partner of the maternal grandmother to come outside. The father conceded he intended to assault the maternal grandmother’s partner. He then went on to smash windows in the home. Unsurprisingly, no one came out of the house to respond to the father. The children were inside at the time.
Thwarted, the father then turned on his cousin Ms H. He was enraged by what he perceived as her betrayal in letting the mother know of the enrolment of the child in a catholic school of his choice. Believing that Ms H had helped the mother to take B out of school, the father drove his car to Ms H’s business, made an aggressive U-turn and drove towards the entrance to the shop she operates. Other parties, including children, were in and around the shop at the time.
Having sat through the five days of this hearing, the father may now appreciate that his violence and threats must have contributed to the decision of the maternal grandmother to arrange for the children to live elsewhere. She was already anxious about accommodation knowing that the house in Suburb U was to be sold, but after the events of that day, she was concerned also for the safety of the children.
The maternal grandmother moved with the children to the home of her eldest daughter Ms O and together, they made contact with the paternal grandmother and asked her to have the children, at least for a while.

Children go into care of paternal grandmother

On 9 March 2015 the paternal grandmother collected the children and took them down to F Town to live with her in the home of Mr Jillet.
Both of the parents had a strong emotional reaction to the removal of the children which ultimately generated four AVOs.
The mother was furiously angry with her mother for making those arrangements for the care of the children and confronted her verbally and by kicking on the front door of the house.
On 12 March 2015 three AVOs were brought into existence:
a)A provisional AVO for the protection of the maternal grandmother from the mother; that order was provisional until 16 April 2015 at which time it was dismissed;[3]
b)An Apprehended Domestic Violence Order for the protection of the maternal grandmother from the father for a period of 12 months;[4] and
c)An AVO for the protection of Ms H and her partner from the father for a period of 12 months.[5]
[3] Exhibit 24
[4] Exhibit 20
[5] Exhibit 21
One consequence of the order for the protection of the maternal grandmother from the mother, although it was only in place briefly, was that the mother was restrained from going within 100 metres of the premises at which the maternal grandmother lived. That effectively, in the absence of orders, was a restraint on the mother seeing the children.
On 27 March 2015 the father in the presence of the mother contacted the paternal grandmother on the telephone. She confirmed that the children were with her and would be remaining with her.
It is apparent that the father again became enraged and turned on the mother and assaulted her in a vengeful way. A photograph of the injuries he inflicted on the mother’s face was tendered into evidence. Her nose was injured, there was bruising and swelling to her face, arms and body.
For the first time, the mother sought the assistance of police, which given the father’s history and background, was an act of considerable courage on her part. An AVO was taken out on her behalf and the father was arrested.[6] The AVO will expire in May 2017.
[6] Exhibit 11
The father was initially charged with assault occasioning actual bodily harm. The charge was subsequently downgraded to common assault. The father was convicted and placed on an intensive correction order for two months commencing 20 June 2016 and concluding 19 August 2016.[7]
[7] Exhibit 22
After their removal the mother did not see the children other than on two brief occasions for almost a year. The paternal grandmother did not offer to bring the children to Newcastle. The mother felt unable to manage a trip to F Town when she was terrified of encountering the father and reliant on public transport. The father however was able to see the children in the home of his mother at any mutually convenient time. He visited them accordingly.
On 22 August 2015 the father presented at hospital with chest pain and palpitations. The father advised that he had taken “Ice, Cocaine and Speed, then took Valium and Seroquel to calm down, hasn’t slept in days”.[8] There was apparently no follow up by the hospital or the father to this episode
[8] Exhibit 13
On 20 December 2015 there was an incident where the mother, her partner Mr I and a friend were intoxicated in public and the two men causing injury to each other and their own front fence.
In early 2016 the paternal grandmother and the subject children moved to a property nearby to Mr Jillet’s property. Although the explanation was that there was insufficient room for the parties and all the children in Mr Jillet’s home, in fact by then, two of Mr Jillet’s children were living elsewhere and a three bedroom home would have been more than adequate.
By the conclusion of the hearing there was still no full explanation for why the paternal grandmother and her husband were continuing to live separately.

History Of Litigation

On 30 April 2015 the mother filed an Application in the Federal Circuit Court seeking to have the children returned to her care by recovery order and asking for orders for sole parental responsibility and residence with her.
The mother filed a Notice of Risk setting out a history of extreme violence directed at her during the relationship with the father and recounting the events of 29 March 2015 when she was beaten and injured.
On 19 May 2015 the final AVO earlier referred to, was made for the protection of the mother.
On 2 June 2015 the matter came before the court. The two grandmothers were joined as parties and an Independent Children’s Lawyer appointed but no recovery or parenting orders were made.
On 2 June 2015 the father filed a Response seeking sole parental responsibility for the children and residence with him, proposing that the children spend time with the mother on alternate weekends, day-time only.
On 1 July 2015 the paternal grandmother filed a Response seeking sole parental responsibility, that the children live with her and that each of the parents spend supervised time with the children as agreed.
The paternal grandmother also filed a Notice of Risk identifying risks to the children from the mother. She did not identify any risks to the children from the father.
Having heard and read all of the evidence I conclude that this was the paternal grandmother being loyal to and protective of her son that she would include in the Notice of Risk, “Mother has been observed striking, pushing and shoving the father on numerous occasions”. Whilst this was probably true, it is immensely misleading given the ferocity of the father’s attack on the mother three months previously.

The Child Inclusive Conference

On 2 July 2015 the parties attended a Child Inclusive Conference with a Family Consultant.
The mother proposed that the children be returned to her care and that time with the father be supervised until he had undertaken anger management counselling and ceased substance abuse.
At the time of the Conference, it had been three months since C, by then aged 18 months, had seen his mother.
An agreement was reached between the father and the two grandmothers that the children should remain in the care of the paternal grandmother.
The focus of recommendations around the mother was for her to provide evidence to the court that she had ceased illicit substance use and abuse of alcohol and addressed her issues in relation to anger.
All those aspects were relevant but there was no recommendation for time between the children and their mother who had been their primary carer until September 2014 and still very much available to them until March 2015.
The relationship between the grandmothers was apparently the dominant consideration, that they were cooperating and working together to care for the children.
The assessment that there was no relationship between the mother and the grandmothers, whilst it may have been true at that time, does not reflect the strength of the relationship between the mother and her mother, disrupted, in the way I have described, in the early months of 2015.
Unfortunately the complex background of the children before they went to stay with their paternal grandmother was not known to the Family Consultant.
During observations C behaved in such a way, being overly familiar with the Family Consultant, that he was assessed as having an attachment disorder. C was also reported by the paternal grandmother to have been non-verbal and non-reactive when he came into her care. She was concerned about his hearing, which proved to be sound on testing.
In the Conference Memorandum, the Family Consultant noted that this behaviour may have been a consequence of exposure to family violence between his parents.
In her oral evidence the Family Consultant agreed that the mother’s expressed fear that this reaction by the child had been as a result of abrupt removal from her, could have also been true.
It must have been traumatic, no matter how safe and well cared for he was, especially as the children had not seen much of their paternal grandmother before they came into her care.

Request for Intervention

On 3 July 2015 a request was made by the Federal Circuit Court for the intervention of the Department. At that time the matter was also transferred to this Court.
On 12 August 2015 the Department notified that it did not intend to intervene in the proceedings.

Proceedings in this Court

On 11 September 2015 the maternal grandmother filed a Response proposing that the children live with the paternal grandmother with a slow progression of time with the children until they were once again living with their mother.
On 19 October 2015 the father filed an Amended Response, withdrawing from having the children in his care but proposing that he share parental responsibility for them with his mother.
On 26 October 2015 the matter came before me. A Family Report was ordered. The Court was advised that discussions were ongoing about the children seeing their mother and how to overcome the logistics of bringing them together.
On 24 February 2016 the Family Report was released.
The recommendations were for:
Therapeutic interventions for the mother, father and both grandmothers;
Specific medical assessments for the children and daycare for C;
Supervised time for the father four times per year only;
Sole Parental responsibility for whoever the children lived with;
Regular time for the children with the mother; and
Consideration of residence for the children with Ms H if she wished to apply.
I conclude that these recommendations are a reflection of the risks identified for the children in the care of any of the parties. A copy of the report was provided to the Department with a further request for intervention.
On 5 April 2016 that request for Intervention was declined
On 11 April 2016 after it had become apparent that the parties were not going to reach informal agreement about how the children could see their mother, orders were made which provided for the children to see their mother each weekend on Saturdays and Sundays.
Over the opposition of the father and paternal grandmother a copy of the Family Report was provided to Ms H. She did not make an application for orders but did become a witness for the mother.
On 6 May 2016 the parties were granted leave to file amended applications and responses.
On 11 August 2016 the legal representatives for the father lodged a Notice of Ceasing to Act.
On 29 August 2016 the hearing commenced and concluded in the five days that had been allocated. Judgment was reserved

Evidence

The documents relied on in respect of the application were as follows:
The Mother
(a)Initiating Application filed 30 April 2015;
(b)Affidavit of the mother filed 26 August 2016;
(c)Affidavit of Ms H filed 26 August 2016;
The Father
(d)Response filed 2 June 2014;
(e)Although the father did not file a trial affidavit, his affidavit filed 20 October 2015 was considered in part;
The Paternal Grandmother
(f)Response filed 1 July 2015;
(g)Affidavit of the paternal grandmother filed 25 August 2016;
(h)Affidavit of Mr Jillet filed 26 August 2016;
The Maternal Grandmother
(i)Response filed 11 September 2015;
(j)Affidavit of maternal grandmother dated 23 August 2016;
Reports
(k)Family Report dated 19 February 2016; and
(l)Child Inclusive Conference Memorandum dated 2 July 2015

The Mother

The mother impressed as both an honest and candid witness. Someone who had genuinely reflected on her life to date and understood that many things had to change.
She was also willing to make concessions where appropriate. For instance conceding that in the past she had used drugs on a daily basis, likewise alcohol including during her pregnancies. She conceded that the paternal grandmother had assisted her with clothes and meals for herself and the children in earlier times.
The mother was raised by a loving mother, the maternal grandmother. She has mental health and drug abuse issues of her own. When the mother met the father, she was homeless, had come to the attention of police and was not in employment. She was taken in by the father to live in his home.
He was physically violent to her at times, which for years she accepted and did not report.
On the important topic of her capacity as a parent, the mother conceded that as a method of discipline, she smacked her daughter and put her in her room. She said “I didn’t realise it was the wrong thing to do, I used to smack her, put her in her room. I have done a lot of things since (a reference to parenting courses) and know it’s not the way to go”,
The mother in her years with the father struggled not only with his mistreatment of her but his unfaithfulness during trips to Asia. She agreed that she relied on alcohol.
Question: Alcohol has been a serious problem?
Answer: It has been.
She then went on the say that she felt she had come a long way and was proud of herself. That ultimately she had given drugs up.
The mother explained that she had been bought up in a violent family and that her father used to give her what she described as “really bad hidings”. It seems reasonably clear that she regarded smacking a child and putting her in her room as a modest form of punishment, however, I accept that the mother has been open to learning different ways of raising children and appreciated that knowledge.
After the second child was born, the mother readily agreed that the paternal grandmother had come home to assist her with the care of the baby, but denied that she had ever complained about feeling restricted by motherhood. She explained that she felt stressed out at times because she was tired but not by doing what was needed for the children. I accept her evidence in that regard.
The mother also agreed that between the period between September 2014 and March 2015 when she was relying on accommodation in the home where her mother was boarding, that it was a difficult time. Sometimes she was not allowed to stay there. Sometimes she chose not to.
She became quite anxious in 2015 when the father, to use the mother’s words, “Stole B off the street” and started her in kindergarten at V School. There has been no discussion about which year, the then four year old B, would start at school.
Again the mother readily conceded she became hugely distressed and angry when the children were placed into the care of the paternal grandmother without reference to her “I was screaming and kicking the door [of the maternal grandmother’s home] to try and get my kids. I was told they weren’t there, but apparently they were in the back room”. The explanation for kicking the door was that the mother had been very frustrated. “I wasn’t thinking clearly, I was scared and anxious”.
The mother has been most concerned about C who she described as a friendly, chatty child before he was removed from her and had held the belief, vindicated to at least some extent by the Family Consultant, that his silence and reluctance to speak was a shocked response to having no contact with his mother.
The mother was a wild adolescent. She had a fight with her sister at her sister’s wedding, threw a beer bottle which smashed, pieces of glass scattering over a two year old child. She was then aged 18. She volunteered she started heavy drinking at 15 but has been going to drug and alcohol counselling with this comment “I want to get better and better”. She agreed that she has in the past dealt with stress by using drugs and alcohol.
With addition to the counselling she volunteered she had changed her friends to those that did not drink, “I have a strong support group”.
Certainly Ms H has been very supportive of the mother’s transition to a more stable life. It has some significance; Ms H is a cousin of the father’s and has been treated with hostility by the father and his mother, perhaps the whole extended paternal family for her support of the mother and involvement in these proceedings.
Since the mother has been regularly seeing the children, that is, over the last five months, relationships have improved.
The mother was criticised for having taking C back to the home of his paternal grandmother during some visits. However if the explanation the mother offered, that the child got tired and she did not want him to fall asleep other than in his own bed, it is a child focused thing to have done.
The mother freely conceded that B was doing well at school, “Yes, she loves school”.
Equally, she conceded that C’s attendance on a speech pathologist had assisted him and current records indicate a good improvement on his social interaction and function. The mother said this in answer to the question as to whether she was grateful to the paternal grandmother, “I’m happy they are still alive, I just don’t understand why she won’t give them back”. This is not an entirely unreasonable statement.
The evidence of the paternal grandmother is that she has always contemplated the return of the children to the mother when she considered the time was right.
The mother was asked about her relationship with her partner of 12 months, Mr I. Mr I lives with his brother close by to the mother’s home. The mother was clear to say that they would not be moving in together soon although she was hopeful that the relationship would endure. She said she thought he should get to know the children first, “I’m introducing him properly to the children, I want to make sure to do the right thing. I don’t know what’s going to happen. It could be a possibility [moving in]”. It is a responsible and committed position to take given that the mother could not be sure that the children would be returned to her care.

The mother has made appropriate inquiries about the school which B would attend and has also put the children’s names down for trauma counselling at VOCAL (Victims of Crime Assistance League), and for counselling through Interrelate.
The mother was cross examined about her own mother’s drug use and her involvement on the opioid treatment program for more than 10 years.
The mother conceded that she had felt angry with her mother growing up that she did not get help for herself and probably that she was unable to move away from violent relationships. However, the mother said this,
I’m not angry with her now, now that I’ve had counselling I believe I can help her to get help too. I know what she has experienced. I’ve gone through some of those things myself. Getting help is the first thing.
I assessed this evidence by the mother as genuine and evidence of maturity.
There was an incident in December 2015 involving the mother, her partner and her partner’s friend. They had been drinking. The two young men had an argument; the mother raised her voice, as she said, “to try to stop them fighting”. The only person injured was the mother’s partner. A neighbour was disturbed and contacted police.
The Family Consultant was asked about the significance of that incidence and I agree with her response that if it was not a pattern of conduct then it was not a matter of the greatest concern about capacity.
Nevertheless, although she has greatly reduced her drinking, the mother needs to give serious thought to the possibility of entirely giving it up. Judgment is affected by alcohol and a single mother of young children may have to exercise her best judgment at any time, day or night. The mother is attending drug and alcohol counselling and she sees a psychologist every two weeks.
All parties were subjected to drug testing, the mother included. Her evidence is that she had volunteered for a drug screen in June 2015, knowing that it would reveal cannabis in her system. She did so in order to show that it was a low level and would subsequently leave. Her screens after that were clear other than in July 2015 when opiates were detected but explained by medical evidence. There was no reference to chain of custody in respect of screens in August and September. The mother was clear to say and forcefully that there had always been chain of custody but there had been confusion over what had been ordered. It is not entirely satisfactory, but there is no evidence to suggest that the mother has been using illicit substances, including cannabis, since mid-2015.
Overall, I formed the impression that the mother has a strong, forceful personality which as a teenager led her into trouble, but as a young women in her later twenties, has assisted her in the way outlined. I conclude that the mother has a deep commitment to raising the children and is presently a good enough parent to do so.

Ms H

Ms H is 28. She is in a stable relationship with another woman. She is the paternal cousin of the father whom she dearly loves. She is a close friend and support to the mother at the cost of that cousinly relationship.
Ms H has offered practical support by driving the mother down to the area where the children live as her support person. The mother lived with Ms H and her partner which stabilized her life whilst she sought out the help she needed.
The paternal grandmother disapproved of Ms H breaking blood ties by supporting the mother over the father. I am satisfied that Ms H is focused on the children and their wellbeing and independently loves the children and wishes to be a part of their life.

The Father

The father is 27. He has a serious criminal history dating back 13 years. He and his older brother Mr K were involved in a violent assault on a former partner of their mother’s. The older brother is still in prison in respect of that offence.[9]
[9] Exhibit 22
The father is a heavy set man, powerfully built, with a slight hesitation in his speech. He responded to cross examination defensively and was, on occasions, aggressive in response.
The father had received a copy of the Family Report and chose not to read it. He gave three explanations:
a)Because he “was just going to tell the truth”;
b)That he was looking after his father,(and presumably was therefore too busy to read it); and
c)“It would only be lies and things like that”.
I conclude that the father avoided reading the report for fear that he would be criticised.
The father has been a heavy drinker and a heavy consumer of cannabis since his early teens. He conceded that he had smoked 20 cones of cannabis per day since age 14. He has not undergone drug and alcohol therapy although I accept his comment that “two months in jail helps you realise” is probably a reference to reflecting on his dependence on drugs.
The father was taken through his criminal record and showed a strong tendency to minimise that history and to readily forgive himself for having assaulted his father, for having a knife in a public place “it was a pocket knife, I was a young kid”, and in respect of a charge and conviction for grievous bodily harm, “I touched nobody, I was in a company with my brother”.
The father conceded that he and his older brother had run away to Queensland to avoid police. The evidence suggests that they stayed with the older brother’s father.
The father was extensively cross examined about assaulting the mother. His evidence was “We both gave as good as we got. When [Ms Turner] was on fire, she was on fire” and “On occasions we got physical to each other, maybe over six years, a dozen times”. I accept there were occasions when the mother struck the father however there is no physical equality in this relationship.
The father was taken to the photography of the mother’s injured face[10] and he commented “I was disgusted with myself after it”. However he quickly recovered his sense of entitlement “I was going through a rough time”.
[10] Exhibit 12
In relation to the Court proceedings in respect of the charge of Actual Bodily Harm, the father stated quite strongly “At Court I went for self-defence, I woke up to it. It was slap for slap. The charge was downgraded to common assault”. He then said “I am disgusted”.
This inconsistency between self-righteous defence of his own violent actions followed immediately by derogatory comments about his own conduct was a pattern through his cross examination. For instance, when the father was asked about attending the home of the maternal grandmother in February 2015, yelling for the partner of the maternal grandmother to come outside, he said “I was upset, emotional, felt betrayed” and soon after “I look back and think I shouldn’t have done anything”. It suggests impulsive conduct driven by anger and fleeting moments of insight.
The evidence of the father about his trip to confront Ms H was that he felt betrayed because he thought that she had helped the mother to take B out of school. He had confided his plans for B to go to a catholic school to his cousin and had paid to enrol her at school. The proposition was put to him that he had been totally out of control on that occasion. The father deftly responded “Totally out of my character”. I disagree. It appears to be well within the character of the father to act aggressively when he feels wronged.
The father confirmed that he had ceased pursuing an order that the children live with him, however, he said two things:
a)About the time that he removed B from the care of the maternal grandmother and enrolled her at school, he said “I’m her father, it’s a father’s right to remove a kid from a non-parent”;
b)In relation to the children in the care of his own mother he said “I am happy with arrangements now”,
Question: You don’t want the children yourself?
Answer: Yes, but not yet.
The father is presently restrained by an Apprehended Violence Order from approaching the mother however there is nothing in his evidence that indicates he would not again impulsively act in anger or out of a belief in parental entitlement in respect of the children.
In August 2015 the father attended a hospital advising that he had taken Ice, Cocaine and Speed, then took Valium and Seroquel to calm down, that he hadn’t slept in days. When questioned about that, the father said that he had given the hospital that information because he did not know what he had taken, he thought he had been spiked, he had been drinking bourbon for two days.
No doubt the father loves his children and wants to be part of their lives but the evidence suggests that he is an unpredictably dangerous person.

The Paternal Grandmother

The paternal grandmother acted swiftly to ensure the safety of her grandchildren, has looked after them carefully and diligently. She has obtained assistance and a report for both children as needed and particularly for C. The report for C[11] reflects real progress for him in his speech and general development and must, to a great extent, be a tribute to her care. I also accept that the restoration of his relationship with his mother has assisted his progress.
[11] Exhibit 14
To her own detriment the affidavit of the paternal grandmother was strongly critical of the mother with no recognition of the role of her son in the violent, drug and alcohol fuelled household of the parents for the first two or three years of their relationship. Likewise, she was quite derogatory about Ms H and her partner, referring to them as “full on druggos”[12] and to the mother’s new partner, whom she does not know, as a “dropkick”.
[12] Family Report dated 19/02/2016, par 54
The paternal grandmother was totally positive about herself and her son and totally negative about the mother and her associates. Whilst she conceded that his conduct outside the home of the maternal grandmother early in 2015 was “totally unacceptable” she quickly went on to say “I can only describe [Mr Chaconas] as the loving father he is in my home”.
I formed the impression that the paternal grandmother habitually limits her knowledge of her family to what she observes in her own home and imposes quite strict rules on conduct there.
The paternal grandmother sadly conceded that she had been the victim of domestic violence perpetrated by her then husband, the paternal grandfather and that the father in these proceedings had been exposed to that violence.
I accept the evidence of the paternal grandmother that she has “learned a lot over the last 29 years of parenting”. I also accept she greatly loves these two grandchildren and wishes to provide them with a safe and stable life.
However she has failed to recognise that her invitations for the mother to come to her home to see the children put the mother at risk and even if they did not put the mother at risk, were unrealistic. The mother is fearful, not simply of further violence from the father but of revenge for having reported him to police. During his evidence he referred to not going to police when there was trouble “I don’t tell tales”. There is a strong inference that the father continues to reflect on the mother having reported him to police.
The paternal grandmother has had her own problems with alcohol abuse. Her life has stabilised to some extent in her relationship with Mr Jillet, although there was an incident in 2011 where police were called and where both of them were intoxicated; that is not to suggest that the paternal grandmother would be intoxicated in the care of her grandchildren. I am confident she would not be.
However she is asking for orders for sole parental responsibility and the right to determine who would see the children and when:
Question: You then have total power for the next 16 years?
Answer: Yes.
The paternal grandmother has excluded Ms H, her son’s cousin, her niece by marriage, because she thought that Ms H could support the mother but not get involved in the case, “[Mr Chaconas] was her own family”. I infer that this offense of disloyalty by Ms H caused the paternal grandmother to exclude her from the children’s lives despite the fact that she is B’s godmother and that B in particular loves her company.
In the event the children remained in the care of the their paternal grandmother, it is likely she would continue to facilitate time between the children and their father, with close scrutiny of the children’s safety and comfort but would be less likely to allow such regular and easy time with their mother, of whom she continues to be highly critical and not particularly forgiving.
The paternal grandmother did not complete the drug tests that she was asked to complete and of those she did, one had a very low level of Creatinine. Her explanation was that she could not afford the testing. The evidence suggests that she could have but chose not to do the tests.
It was not in the contemplation of either of the grandmothers or the maternal aunt when the children were placed into the care of the paternal grandmother that the arrangement was permanent. She herself expected that the children would go back to their mother. She has done a very good job looking after them with the significant omission of making every effort to ensure that they maintained contact with their mother.
The paternal grandmother must have known the impact on C and B of not seeing their mother at all for ten months after they came into her care. She has a car, can drive, and could have afforded to go to Newcastle with the children, but chose not to. It was not child focused.
In the event that the children return to live with their mother it will be very important that the paternal grandmother continues to be a part of their lives. She is a part of their story that enabled them to live safely and happily when their parents were unable to do so.

Mr Jillet

Mr Jillet is the husband of the paternal grandmother. He was 40 at date of hearing. He has three teenage children; W aged 17 who now lives independently; X almost 16 who lives with her father and Y aged nine who presently lives with his own mother and maternal grandparents.
All of those children have been members of the household of the paternal grandmother and Mr Jillet over the past ten years of their relationship.
Mr Jillet readily took on the return of his estranged wife with her two grandchildren when asked to do so in March 2015. It is a commitment for which he should be commended. He did not show himself to be particularly insightful about why the mother would not come to the home to see the children, “Yeah but we hadn’t done anything to her, why wouldn’t she stay with us because of something her partner did to her”. This is a reference to his wife’s son, whom he knows, and knows to be a violent person, although he questioned the photograph of the mother’s injuries as to whether the father had “really done that” to the mother.
He was critical of the mother, asserting that the novelty of [parenthood] would wear off but on balance it seems likely that he was critical of the mother as a way of being supportive of his wife.
Mr Jillet was quite cranky and dismissive about the drug testing that his wife should have undergone, conceding that he could have found the money she needed for the tests if it were the case that she could not afford them but really annoyed at the prospect of the testing going on for an unknown period.

The Maternal Grandmother

The maternal grandmother is an engaging and overtly affectionate person who lives for her family, her children and her grandchildren.
There is no doubt the maternal grandmother acted protectively of the children when she moved to live close by to the paternal grandmother to assist with their care.
She separated from her partner to do that, although it is possible they were intending to separate in any event when the house in Suburb U was sold. Nevertheless she moved to an unfamiliar area in order to support her grandchildren. Now she has returned to the Newcastle area. I accept that she is satisfied that the mother is ready to take back the care of the children. She described her daughter as “Different now. Confident. Knows what it is all about”.
The maternal grandmother conceded that she had a long standing problem with drug use and described herself as a very depressed person with a sad life in earlier years.
I formed the impression that the maternal grandmother, having done what she thought was best for the children by placing them into the care of their other grandmother, became anxious that they were not returned in due course.
I have no doubt that the maternal grandmother will provide all the assistance she can to her daughter and these two grandchildren as she does to her other two daughters and those four grandchildren.
The maternal grandmother was also required to go through drug screening. On the first test she was positive for methamphetamine, amphetamine, and codeine. She felt humiliated and did not engage with further testing.
No one suggested that the maternal grandmother has used drugs or alcohol in the presence of the children or at time put them at risk.
She has taken herself off the Opioid Treatment Program without medical consultation and without follow up counselling. That is entirely a matter for her. On balance, given her history, there is no reason to think that the maternal grandmother will not be a positive support for her daughter and grandchildren.

The Family Consultant

The Family Consultant was taken to the evidence about the father’s assault of the mother and his apparent lack of empathy at what he saw in the photograph was “dried blood, and swollen eyes from crying”.
The Family Consultant stated strongly that the relevance of that for the mother was that it was danger for her as it called into question the father’s impulse control combined with that lack of empathy.
The Family Consultant confirmed that a stated concern of hers was the time that had passed with no facilitation of time between the children and the mother. She agreed that B had developed well and had been in the exclusive care of her mother until almost five years.
Subject to the findings of the Court, the Family Consultant was generally favourable to the children returning to the care of their mother however she differentiated between the children.
She said B had an established relationship with the mother before she left her care. She would find the transition easier. For C however, who had only been 15 months old, he would have developed a secure attachment to the paternal grandmother.
However she confirmed the mother’s view that his apparent non-responsiveness early in the transfer and his improvement since April 2016 when she began seeing him regularly again had been an important contributor to his recent improvement.
Nevertheless the Family Consultant was clear to say that he should come back gradually into the mother’s care and not abruptly. The mother herself by her application, recognised or was at least well advised to recognise, the need for such a transition.

The Law

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.
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.

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

Parental Responsibility

I accept the recommendation of the Family Consultant that whoever the child live with should have sole parental responsibility. Mostly because there is not a good working communicative relationship between the mother and the paternal grandmother but also because of the distance between the households.
There is a meaningful relationship between these two children and their mother and their paternal grandmother. The relationship between B and her mother has been preserved and the paternal grandmother freely and fairly conceded that B has missed her mother and wanted to see her. The relationship between C and his mother was effectively lost between March 2015 and April 2016. However it has been readily restored suggesting that he was well attached to his mother before the age of 15 months and his confidence has been good enough to re-engage since April, however he does have a most important relationship with his paternal grandmother which needs protection.
The children have a relationship with their father but it is not consistent with their safety. He has a long history of dangerous, impulsive acts and he has attacked and injured the children’s mother. There is evidence of a dangerous, vengeful focus on those who cross him and a sense of entitlement to take the children into his care.
The mother has a meaningful relationship with both her children and is not a threat to their safety.

Additional Considerations

Of additional considerations, the following matters affect the issues in consideration.

Any views expressed by the children 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 children’s views

The children are aged six and almost three. B (now aged six) and C, then aged almost two, was observed rather than interviewed.
At five years and 10 months, B told the Family Consultant that she enjoyed living with the paternal grandmother. She appreciated the food provided especially breakfast. She has enjoyed horse riding and swimming. She enjoys spending time with X (the almost 16 year old daughter of her grandmother’s partner).
B wanted the Judge to know that “She likes living with the paternal grandmother as well as [Mr Jillet] and his children and enjoys spending time with the maternal grandmother”.
She reported missing both the mother and father and expressed her preference for everyone to live together.
The Family Consultant interpreted her wish to live with “everyone” as indicative of the child wanting to be able to have relationships with all those people in her family whom she loves and wanting those family members to get along.
B was four and a half when her parents separated. She had been exposed to violence between her parents and verbal abuse directly.
She then went to live with her maternal grandmother with whom she is very close. In that household there was insufficient room for the mother and child, the maternal grandmother and her then partner. The mother stayed at the home some nights and attended most days. Six months later in March 2015 she moved with her maternal grandmother to stay with her aunt.
Soon after, she was removed into the care of her paternal grandmother. She moved away from her mother and maternal grandmother and did not see her mother again for nine months, although she heard her voice on the telephone.
For the past 18 months she has had stable and attentive care from the paternal grandmother. She has also seen her father at his best. He contains his dark violent side in the presence of the paternal grandmother.
The Family Consultant stated that B did not have the maturity to decide who she should live with. That must be so. However, even a much older child would be confused about where she would like to live after such a series of disruptions to her young life.

The nature of the relationship of the children with each of their parents and others

The children were aged almost five and 13 months at the time of their removal into the care of the paternal grandmother. There is no doubt that particularly for C the impact of the change and then a period of more than a year without contact with his mother, has had a considerable adverse impact.
Since April 2016, when they began seeing their mother each weekend, relationships between the mother and children, significantly with C, have been restored. It appears that the relationship between B and her mother remained well intact.
The children have a loving and joyful relationship with the maternal grandmother who has maintained a presence in their lives, all their lives. They also have a close relationship with their two maternal aunts and their children, they are very much part of that extended maternal group.
The children, especially C, had an affectionate relationship with Mr Jillet’s children, particularly W, however that relationship has reduced in significance now that none of the Jillet children live in the same household as the C.

The likely effect of any changes in the children’s circumstances

This is an important consideration.
B is happy at school and is finishing her first year of kindergarten. She has friends and activities such as swimming and horse riding which she greatly enjoys.
C has been going to day care but has two full years before he will be due to start school.
The children will travel out of their current area and away from the paternal family to Newcastle back to the area which B at least would still be familiar with. They will lose the day to day care of the paternal grandmother and C might struggle with the loss of his familiar world for a second time, however I am satisfied that there will be a positive benefit to the children of being in their mother’s care despite the fact that there is some risk that she could relapse into reliance on drugs and alcohol or could introduce her partner too soon into the lives of the children. They need her undivided attention in the short term at least.

The practical difficulty and expense of a child spending time with and communicating with a parent

The mother and the paternal grandmother are 250 kilometres apart.
For the children to make the transition back into the care of their mother there will be a lot of travelling, most of which could fall upon the paternal grandmother. It is an imposition and an expense however the paternal grandmother does have family in the Newcastle area and will be practically possibly, I am confident that the paternal grandmother will be motivated by the benefit to the children in having an easy, rather than an abrupt transition from her care to their mother.

Capacity

Capacity to meet the needs of the children is the most significant issue.

The Mother

The limits on the capacity of the mother has been her replication of poor parenting received as a child herself, her use of drugs and alcohol to relieve stress, and expression of unregulated emotions, particularly anger.
Her strengths are her openness to learn different ways to engage with and teach children what to do, her love for the children and her motivation to move away from their father who was violent towards her. Ultimately she found the courage to enlist the assistance of police to put a stop to the father’s violence.
I also take into account the mother’s request for assistance to the Department for parenting made before the first child was born.
The mother has decided not to live with her partner before he is properly introduced to her children. This is a significant matter for a young woman with no certainty that the children would be returned to her care.
She has chosen to rely on the affectionate and positive support of Ms H and her partner in her efforts to achieve stability. She has broken away from friends associated with illicit drugs and heavy drinking.

The Paternal Grandmother

The paternal grandmother has demonstrated a capacity to care for the children. She has provided a good level of physical care and has attended to the medical and educational needs of the children.
She has been less attentive to their emotional needs in respect of their relationship with their mother and the risks inherent in their relationship with their father.
The paternal grandmother had her own challenges as a young parent, has learnt from them and is a capable and competent carer for the children without doubt.

The Father

The father is not an applicant for residence.
He has assumed the ability to see the children in the care of his mother. He has not addressed his impulsive aggression which has led him into trouble on so many occasions in the past. He has not addressed his willingness to use physical force when angry in an intimate relationship. He has not sought out consistent drug and alcohol treatment and he has apparently not reflected on his impact on others although he knows he has the capacity to frighten. These are very serious limits on the father’s capacity to meet the emotional needs of his children.

Family Violence

Family violence was a feature of the children’s lives in the household when their mother and father were both present.
They have been in a stable environment in the home of the paternal grandmother although there has been some disruption arising from Mr Jillet’s children’s difficulties at times which most likely did not affect the younger children at all.
There is a current family violence order for the protection of the mother which expires in May 2017.
There is a risk of violent confrontation of the father by the mother over the return of the children to her care and she and the children need appropriate protection from that. An order pursuant to s 68B to restrain the father from approaching the mother and the children in all settings is that appropriate protection.

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 children

It may be that there is a future application by the father for defined time between himself and the children. However, there is no basis for assuming that at any particular time the father will be in a better position to have time with his children, supervised or unsupervised. It is in the father’s hands as to when that matter comes.

Conclusion

I have concluded that the mother has taken steps to stabilise her life and reflect on her role as a parent that enable her to have the children come back into her care.
Orders are made for her to have sole parental responsibility and for the children to return to live with her permanently by early 2017.
The transitional period will require commitment and consideration especially for the amount of travelling that the paternal grandmother will be required to do. I cannot assume that for this level of time that Ms H would be available to transport the mother or that the paternal grandmother would always be able to stay in Newcastle.
Changeovers have been provided in the orders to take place at Central Railway Station. However, it is open to the parties to vary those arrangements. The intention of the orders is that the children will spend time with the mother in her home in the Newcastle area at least on the majority of occasions.
Provision is made for minimum time between the children and the maternal grandmother however the evidence suggests that there will be no need to fall back on formal orders given the restored relationship between the mother and her mother.
Time between the children and the paternal grandmother is a most significant matter. Provision has been made for not less than one weekend per calendar month, in Newcastle and for one week of each of the term holidays and two weeks at Christmas which could take place in the paternal grandmother’s home.
Time between the children and the father is problematic. I am satisfied that the paternal grandmother can direct the father in her own household. I accept her evidence that she would supervise his time with the children if required to do so. The evidence strongly supports supervision as necessary.
The mother does not oppose time between the children and the father if the children are safe.
Accordingly the paternal grandmother should discuss with the mother the times that she proposes the father will be in the household.
Restraints are made on the conduct of the father around the mother and children.
Provision is made for the mother to enrol B at school where C will also attend in due course.
There is also provision for exchange of information and advice about the progress and welfare of the children.
Orders are made accordingly.

I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 28 September 2016.

Associate:

Date: 26 September 2016

[2016] FamCA 821

28 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness