VAUGHAN & VAUGHAN & SCOTT

[2010] FMCAfam 863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VAUGHAN & VAUGHAN & SCOTT [2010] FMCAfam 863

FAMILY LAW – Parenting orders – parental responsibility orders in favour of a non-biological parent – allegations of unacceptable risk of harm in each household – children’s wishes – separation of siblings.

Family Law Act 1975, ss.60B(1) and (2), 60CA, 60CC, 61DA, 64C, 65C, 65DAA

Vaughan and Vaughan [2009] FMCAfam 1271
Aldridge and Keaton (2010) 42 FamLR 369
Rice v Miller (1993) 16 FamLR 970
Re Evelyn (1998) 23 FamLR 73
Potts and Bims [2007] FamCA394
MRR v GR [2010] HCA 4; (2010) 42 FamLR531

Applicant: MS VAUGHAN

First Respondent: MR VAUGHAN

Second Respondent: MR SCOTT

Independent Children’s Lawyer: LEGAL AID COMMISSION NSW

File Number: TVC48 of 2008

Judgment of: Lapthorn FM

Hearing dates: 11, 12 August; 26 November 2009;
29, 30 and 31 March & 1 April 2010

Date of Last Submission: 1 April 2010

Delivered at: Newcastle

Delivered on: 23 August 2010

REPRESENTATION

The Applicant: Self Represented

Solicitor for the First Respondent: Mr Paul Smith

Solicitors for the First Respondent: Curtis Gant & Irving Solicitors

The Second Respondent: No appearance

Independent Children’s Lawyer: Ms O’Rourke

Solicitors for the Independent Children’s Lawyer: Legal Aid Commission of New South Wales

ORDERS

1. Mr Vaughan have sole parental responsibility of the children [Y] born [in] 1997 and [Z] born [in] 1999.

2. Mr Vaughan must inform and provide details to Ms Vaughan, in relation to both children and Mr Scott in relation to [Y] as soon as practicable after any of the following apply:

   a)Any intention of changing the children’s school enrolment;

   b)Any extra curricula activities in which he intends to involve the children;

   c)A copy of each of the children’s school reports; and

   d)Any special school or extra curricula event involving the children;

   e)The name, address and telephone number of any counsellor or medical professional on whom the children are attending;

   f)If the children develop a serious illness or require emergency medical attention or hospitalisation.

3. The children live with Mr Vaughan.

4. Ms Vaughan notify Mr Vaughan in the event the children become seriously ill or suffer serious injury during the time they spend with her.

5. All parties are restrained from denigrating one another in the presence or hearing of the children and must use their best endeavours to ensure no other person does so.

6. All parties are restrained from using physical discipline on the children and must use their best endeavours to ensure no other person does so.

7. Mr Vaughan must as soon as practicable arrange for [Y] to be involved in personal counselling, which is to focus on his relationship with his mother.

8. The children spend time with Ms Vaughan as follows:

   a)For the whole of the New South Wales holiday periods at the end of Terms 1 and 3 in odd numbered years provided the child is returned one whole day prior to the commencement of school;

   b)Subject to order (9), for the whole of the New South Wales holiday periods at the end of Terms 2 and 3 in even numbered years;

   c)Subject to order (9), from the first Saturday until the fourth Saturday of the New South Wales Christmas school holiday period after the end of school in even numbered years;

   d)From 2 January in New South Wales Christmas school holidays (when Christmas is in a odd numbered year) until two (2) days before the recommencement of school;

   e)For up to seven (7) days twice a year when Ms Vaughan is in the [Town M] locality, conditional upon Ms Vaughan providing Mr Vaughan with seven (7) days notice of each visit and the children attending school.

9. [Y] will spend time with Ms Vaughan during the first week of term 3 school holiday period in 2010 conditional upon Ms Vaughan ensuring that [X] is not present in the household during such time.  In the event that Ms Vaughan is unable to make arrangements for the child [X] to be absent from the household during that period then [Y]’s time with Ms Vaughan in the Christmas school holidays 2010 will also be for a period of 1 week and conditional upon the child [X]’s absence from the mother’s household.

10. For the time that the children spend with Ms Vaughan during the school holidays the children are to fly by return airflight from Newcastle to [Town T] with Ms Vaughan collecting the children at [Town T] Airport.  At the cessation of the time that the children spend with Ms Vaughan she is to deliver the children back to [Town T] Airport before onward travel to Newcastle.  Mr Vaughan and Ms Vaughan are to share equally the costs of facilitating such travel.

11. The children communicate with Ms Vaughan by telephone on at least two (2) occasions per week to be initiated by Mr Vaughan arranging for the children to make the telephone calls and by the use of Skype at least once per week with the times of the communication to be agreed between the parties and failing agreement at 7.30pm New South Wales time.

12. Mr Vaughan facilitate the child [Y] spending time and communicating with Mr Scott as agreed between Mr Vaughan and Mr Scott.

13. Mr Vaughan must actively encourage and facilitate the children spending time with members of Ms Vaughan’s extended family living in [Town S] and [Town M].

IT IS NOTED that publication of this judgment under the pseudonym Vaughan & Vaughan & Scott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

TVC48 of 2008

MS VAUGHAN

Applicant

And

MR VAUGHAN

First Respondent

MR SCOTT
Second Respondent

LEGAL AID COMMISSION NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Ms Vaughan is the mother of three children: [X], born in 1995; [Y], born in 1997; and [Z] born in 1999.  I have been asked to make parenting orders in relation to [Y] and [Z]. 

2. [Z]’s father, Mr Vaughan would like both children to live with him in [Town M], New South Wales.  The mother would like the two children to live with her, her partner and [X] in [Town T], Queensland.  [Y]’s father, Mr Scott who lives in [omitted], New South Wales, was open to [Y] living with him or the mother as could be agreed between them and was opposed to [Y] living with Mr Vaughan.

3. The children were independently represented by Ms O’Rourke of the Legal Aid Commission New South Wales.  The ICL sought orders providing for both children to live with Mr Vaughan and spend time with the mother during the holidays.  She also supported a flexible arrangement for [Y] to spend time with his father by agreement between Mr Vaughan and Mr Scott.

4. When the hearing commenced in August 2009 the only application before the court was in relation to [Z] and involved only Mr and Ms Vaughan.  During the course of the hearing I became concerned about the welfare of [Y] after hearing the mother’s evidence.  Mr Vaughan asked for the matter to be adjourned to enable him to amend his response to seek orders for [Y] to live with him.  On 26 November 2009 after hearing argument from all parties including [Y]’s father Mr Scott I made interim orders for [Y] to live with Mr Vaughan.[1]

   [1] See interim judgment:  Vaughan and Vaughan [2009] FMCAfam 1271

5. The final hearing resumed on 29 March 2010.  [Y]’s father did not take part in the proceedings.  He left a message on my associate’s telephone at 6.45pm that day advising he did not intend to attend court.

Background

1. Mr and Ms Vaughan commenced a relationship in August 1998 and married in September 2000.  Both [X] and [Y] lived with Mr and Ms Vaughan from the start of their relationship.  Neither child had a relationship with their biological fathers at that stage. Mr Vaughan assumed the role of step-father.  [Z] was born in 1999.

2. Mr and Ms Vaughan separated after Mr Vaughan was arrested in March 2007 for an assault on [X].  Both parents remained living in [Town M] until the mother relocated to [Town T] in January 2008.  The mother had by that stage formed a relationship with Mr R who [works for the Australian Government] and is currently posted to [Town T].

3. When Mr and Ms Vaughan separated the children lived with their mother and initially spent time with Mr Vaughan at his parents’ home.  [Y] left the mother’s home in December 2007 after an incident with Mr R and went to Mr Vaughan’s home but was removed by officers from the Department of Community Services.  [Y] was placed with his biological father and remained there until March 2008 when he moved to [Town T] to live with his mother.

4. The mother filed her application for parenting orders in the Townsville registry of the Federal Magistrates Court on 16 January 2008.

   
   

   Mr Vaughan, at that stage not knowing the mother had filed her application, filed an application for parenting orders in the Local Court at [Town M] on 18 January 2008.  Mr Vaughan’s application was transferred to the Federal Magistrates Court. 

5. Federal Magistrate Coker made orders on 26 March 2008 for Mr and Ms Vaughan to have equal shared parental responsibility for [Z] and for the child to live with her father in [Town M].  His Honour’s orders provided the child to spend time with the mother during school holidays if she remained living outside of the [Town M] locality.  In the event the mother returned to live in [Town M] the orders provided for the child to live with each parent in a week about arrangement.  The mother has not returned to live in [Town M].

6. The matter was then transferred to the Newcastle registry.

7. Mr Vaughan was convicted of assault occasioning actual bodily harm on [X] in October 2008.  The mother brought an application in December seeking an order that [Z] live with her however in February 2009 her interim application was dismissed.  The matter was initially set down for a final hearing in March 2009 however it did not proceed on that day on the mother’s application for adjournment.

8. Mr Vaughan’s appeal in relation to his conviction for assault was dismissed in May 2009.

9. Mr Vaughan has now resumed working for an engineering firm in [Town M] after many years on sickness benefits.  He remains living with his parents.

Issues

1. The significant issues for determination in this case are where both children should live and who should have parental responsibility for them. 

2. In determining those primary issues the court will need to have regard to the safety and welfare of each child in each household.  The mother is concerned that the children are at an unacceptable risk of harm in the care of the father because of his conviction for assault on [X] and her allegations that [X] had been sexually abused by Mr Vaughan.  The father believes that the children are at risk of unacceptable harm in the care of the mother because she lacks the capacity to properly care for them.

Orders sought

1. The Independent Children’s Lawyer tendered a proposed Minute of Order[2] which was supported by Mr Vaughan.  The mother presented two minutes of order: one being a handwritten list of proposed orders in the event she was successful in her application[3] and a typed minute of order if she was not successful.[4]

   [2] ICL 18

   [3] M1

   [4] M5

2. Mr Scott did not take part in the final stages of the hearing.  From his response it appears he did not want [Y] living with Mr Vaughan and preferred to make arrangements direct with the mother as to where [Y] would live.

3. In summary the ICL sought orders that provided for the children to live with Mr Vaughan and that he have sole parental responsibility for them.  Her minute of order provided for [Z] to spend time with the mother during the school holidays with additional time if the mother was in the [Town M] locality.

4. The ICL also sought orders for [Y] to spend time with his mother but subject to initial the condition that [X] was not also present.  Her minute of order also sought orders for [Y] to spend time with Mr Scott as agreed between Mr Vaughan and Mr Scott.  There were other orders sought that were not controversial.

5. The mother’s detailed minute sought orders that would provide for the children to live with her.  In relation to parental responsibility she sought equal shared parental responsibility orders including the responsibility to be shared equally between the mother, Mr Vaughan and Mr Scott in relation to [Y].

6. The mother wanted the children to spend time with Mr Vaughan during school holidays provided he continued to live with his parents.  There was also provision for [Y] to spend holiday time with Mr Scott.

7. I do not propose to go through all of the orders sought by the mother but have had regard to them all.

8. The mother’s other minute of order was tendered to assist the court determine what arrangements she would want put in place is her primary application was not successful.  In essence it provided for equal shared parental responsibility and for the children to spend holiday time with her and in the case of [Y] some holiday time with Mr Scott.

The evidence

1. In support of her application the mother relied on her amended application filed 19 September 2009 and a Notice of Child Abuse or Family Violence in Form 4 filed on 10 September 2009.  I have had regard to all the affidavits filed by the mother.  They are:

   a)Her affidavits filed:

   i)14 February 2008;

   ii)12 December 2008;

   iii)10 September 2009;

   iv)1 December 2009;

   v)24 February 2010; and

   vi)5 March 2010.

   b)Ms HW filed 10 September 2009;

   c)Mr R filed 10 September 2009;

   d)Mr W filed 10 September 2009;

   e)Ms SW filed 10 September 2009;

   f)Ms KS filed 10 September 2009;

   g)Ms D filed 10 September 2009;

   h)Ms G filed 10 September 2009;

   i)Ms C filed 11 September 2009;

   j)Mr D filed 11 September 2009.

2. Mr Vaughan relied upon his amended response filed 13 August 2009 and his affidavits filed:

   a)14 February 2008;

   b)20 March 2008;

   c)17 July 2009;

   d)19 November 2009; and

   e)26 February 2010.

3. Mr Vaughan also relied on the affidavits of:

   a)Ms V filed 17 July 2009 and 26 February 2010;

   b)Mr V filed 17 July 2009 and 26 February 2010; and

   c)His solicitor Paul Smith filed 18 September 2009 and 25 November 2009.

4. Mr Scott relied upon his response filed 26 November 2009 and his affidavit filed 26 November 2009.  Mr Scott also relied on the affidavit of Mr WS, Ms KS and Ms J all filed on 26 November 2009.

5. There were two family reports prepared by Regulation 7 Family Consultant, Mr Paris, which were released on 19 January 2009 and 17 November 2009.

6. A number of documents were tendered during the course of the hearing.  These included documents from the Department of Education and Training in Queensland;[5] New South Wales Police;[6] Queensland Police;[7] New South Wales Department of Community Services;[8] Department of Child Safety Queensland;[9] [J Hospital];[10] Department of Education (NSW);[11] [J School];[12] [B Medical Centre];[13] and [H School].[14]

   [5] ICL 2

   [6] ICL 3, ICL 4, ICL 7, ICL 14, ICL 16, M2, M3

   [7] ICL 6, ICL 9

   [8] ICL 11, ICL 17, M1, F2

   [9] ICL 12

   [10] ICL 8

   [11] ICL 5

   [12] ICL 13

   [13] ICL 15

   [14] F1

7. My associate transcribed a telephone message left by Mr Scott on 29 March 2010 advising he would not be attending court.  A copy of the transcription was placed on the record.[15]

   [15] C1

8. When the hearing commenced in August 2009 the ICL had tendered a list of issues[16] however on 1 April 2010 that exhibit was withdrawn given the developments since the commencement of the hearing.

   [16] ICL 1

9. The evidence was voluminous and in the interests of keeping this judgment as brief as possible I do not propose to repeat all of it.  I have however had regard to all of the affidavits to which I have referred along with the family reports and the documents tendered.

10. I propose however to address significant matters under separate headings where possible.

The relationship of Mr and Ms Vaughan prior to and after separation

1. Both Mr and Ms Vaughan describe a very unhappy home life for a number of years prior to separation.  Ms Vaughan gave evidence of feeling controlled financially and emotionally by Mr Vaughan.  She accused him of telling her that he had a brain tumour which was one reason why she did not leave the relationship sooner.  The mother incurred a number of debts including to the Department of Social Security for over payment of the family tax benefit, which she says was as a result of her husband controlling the finances and not keeping her informed.  

2. Both claim to have been the primary carer of all the children.  Mr Vaughan did not work in paid employment for at least 6 years of their relationship whilst he was on sickness benefits.  The mother was in paid employment [doing shift work] in [Town M] for at least 18 hours a week with the occasional extra shifts. 

3. Mr Vaughan categorically denied ever telling the mother he had a brain tumour.  He gave evidence of the mother withdrawing from the family spending many hours in her bedroom.  Whilst the mother conceded she did spend a lot of time in her bedroom she did not agree that she failed to interact with the children and Mr Vaughan.  Under cross-examination she conceded though that she did not eat meals with the family.  [X] told officers from the Queensland Department of Child Safety that the mother locked herself in her room and also told the family report writer that Mr Vaughan did most of the parenting as the mother kept herself to her room.  [Y] also told Mr Paris that the mother spent most of her time in her room.

4. Whilst I am satisfied that both parents were involved in the care of the children, I preferred the evidence of Mr Vaughan that he was more available to the children than the mother by reason of her employment outside of the home and her withdrawal from the family whilst at the home.  For this reason I am persuaded that Mr Vaughan was the primary care giver to all of the children for the last 5 years of the relationship.

The relationship of Ms Vaughan and Mr R

1. Ms Vaughan commenced a relationship with Mr R in about June 2007.  The mother appears to gain strength from the support that Mr R provides her notwithstanding the difficulties they have experienced in parenting the children.

2. Mr R gave evidence of observing the mother’s self esteem improve over time since they have been living in [Town T].  Mr R has three children of his own: two teenage daughters who live with their mother in New Zealand; and a five year old son who lives with his mother in New South Wales.  He has contact with all of his children.

[X]

1. [X] is the eldest child of the mother and Mr D.  The mother was 17 years of age when [X] was born.  Mr D did not have a relationship with [X] when she was young having lost contact with the mother after he moved away from the [Town M] area and then after making contact with the mother accepting her request to not be involved.

2. The evidence of the parties and the documents tendered from a number of agencies clearly show that [X] is a troubled child.  She is said to have had behavioural problems since she was three years of age which continued throughout her schooling.  At the conclusion of the final hearing in April 2010 [X] was living with her mother in [Town T] but has had a number of placements since Mr and Ms Vaughan separated including periods with the maternal grandparents and with Mr D.

3. [X]’s circumstances are relevant to these proceedings as the mother submitted that the assault by Mr Vaughan upon [X] shows that the other two children would be at an unacceptable risk of harm in his care whereas the Independent Children’s Lawyer and Mr Vaughan argued that the mother’s capacity to parent [X] is compromised to such an extent that the court would form the view that [Y] and [Z] would be at risk of unacceptable harm if they were returned to live with the mother.  I am also concerned about the relationship between the three siblings.  For these reasons I will address a number of important aspects of her circumstances.

Mr Vaughan’s conviction for assault on [X]

1. On 26 March 2007 Mr Vaughan was charged with assault occasioning actual bodily harm of [X] and was on 17 October 2008 convicted of the offence.  His appeal against this conviction was dismissed.  Notwithstanding the conviction Mr Vaughan maintains his innocence.

2. The documents produced from the New South Wales police record that on 22 March 2007 [X] disclosed to a friend at school that her stepfather had assaulted her with a pole. The friend told a teacher who subsequently reported the matter to the Department of Community Services (DoCS). When interviewed by officers from the department, [X] said that the assault occurred at the family home on the previous evening. Bruising was observed to [X]’s thighs and she was subsequently examined by a doctor at the [B Medical Centre]. Police interviewed [X] in the presence of her mother and DoCS officers.

3. [X] said that on 21 March 2007 she was in the family lounge room with [Y], [Z] and Mr Vaughan. Her mother had retired to her bedroom for the night. [X] did something that made Mr Vaughan angry. Mr Vaughan ordered her to stand near him, took a rod that had previously been part of a towel rack from near the fish tank in the room and ‘flogged’ her with the rod on her legs and buttocks. This caused extensive bruising to [X]’s buttocks and outer thighs consistent with an assault with a rod. [X] stated that Mr Vaughan had assaulted her on a daily basis for two to three weeks and on occasions called her a slut and a whore.

4. At about 9.50pm on 22 March 2007 Police attended the family home and arrested Mr Vaughan. They did a cursory search of the home with the mother’s permission but did not find the rod.  Police took Mr Vaughan to [Town M Police Station], he was entered into custody and interviewed.  During the interview Mr Vaughan admitted to having hit the child on the buttocks with an open hand twice the previous evening, he denied hitting her with a rod or any object, stated that he did not cause the bruises.  He denied having assaulted [X] over the previous weeks. Mr Vaughan said that [X] was picked on and assaulted at school and on the school bus on a regular basis.  He said that [X] was a liar and that he had told her if she finds herself in trouble to blame him and he would sort it out. Mr Vaughan also said [X] had been attempting to self-harm.

5. Police issued an interim Apprehended violence order (AVO) to protect [X] but did not charge Mr Vaughan that night. Police made inquiries with [J School] and the [O Bus Company]. There were no reported incidents of concern on or around 21 March 2009 from the school or the bus company.

6. Police interviewed the mother who said she was in bed reading or asleep with her bedroom door closed at the time [X] was assaulted. She said the television was turned up loud and she did not hear [X] crying or cry out. She said she was not aware of Mr Vaughan hitting [X] in the past with an object, only with his hand occasionally.

7. I was not invited to re-visit the facts of the assault given the conviction and subsequent dismissal of Mr Vaughan’s appeal.

[X]’s circumstances between March 2007 and January 2008

1. The documents tendered from police, the child welfare agencies in New South Wales and Queensland, the [J Hospital] and the [B Medical Centre] paint a picture of a deeply troubled girl that has not been able to find a long lasting stable home environment despite significant interventions from the welfare agencies and maternal family.

2. When [X] made the disclosures of physical assault by Mr Vaughan she was initially placed into temporary emergency care by DoCS apparently for her protection as Mr Vaughan had not been charged.  This was with the consent of the mother.  [X] went to live with the maternal grandparents in [Town S] for a couple of months before returning to live with the mother in late May 2007.  Not long after her return however the mother reported her missing after an argument with [Y].  By June or July 2007, although the evidence is not clear, [X] was back living with the maternal grandparents.  On 25 July 2007 [X] was reported missing by the maternal grandmother after an argument in her home.  She was found three hours later.  Within a couple of days the paternal grandfather had notified an officer of DoCS that [X] would be returning to live with the mother as they could no longer cope with her abuse and behaviour.

3. On the evening of 31 July 2007 the mother called Police to attend her home because [X] had been aggressive and violent to her and [Y].  The mother had also contacted DoCS and asked for assistance as she could not have [X] in the house at that time. She told police [X] had assaulted [Y] and thrown things around the house.  The police record that [X] appeared agitated and would not speak with them. She was taken to the police station and DoCS was contacted.  [X] was placed in temporary care as the maternal grandparents were unable to care for [X] due to her violent behaviour.

4. The notes from DoCS record problems in September 2007 when [X] told officers of the department that she did not want to see her mother because of ongoing arguments between herself, [Y] and the mother.

5. The next reported event occurred while [X] was living with the mother three nights each week and the rest of the week in foster care. On the night of 28 October 2007 Police attended at the mother’s residence after [X] left the residence and did not return. The mother told police [X] was not welcome at her home if she did return.  Police were called back to the house a short time later after [X] arrived home.  Police noted that it was pouring rain and the mother would not allow [X] into the house.  Police told the mother that if she did not want [X] at home she should take her to the foster carer.  The mother said she was unable to do this and requested that Police do so. Police noted that [X] was well behaved but [Y] was rude and disobedient to Police and the mother had attempted to agitate [X] on several occasions.  I shall further consider the events of this day in relation to [Y] below.

[Y]’s circumstances up until March 2008

1. [Y] appears to have had a close relationship with Mr Vaughan.  Although not his biological father, Mr Vaughan has been his father figure since [Y] was 10 months of age.  Mr Paris concluded that [Y] views Mr Vaughan as his psychological father. [Y] told Mr Paris that he “misses dad” meaning Mr Vaughan.  This interview took place when [Y] had been living in [Town T] with his mother and Mr R.  [Y] said he saw his long term future as living with Mr Vaughan even though he was aware at that time that the only application before the court related to [Z].

2. Mr Scott gave evidence of experiencing difficulties in developing a relationship with [Y] in [Y]’s early life.  He clearly blamed Mr Vaughan for much of this saying that he was very controlling of the mother and was intimidating. 

3. In August 2003 Ms V, the paternal grandmother of [Z] became concerned that Mr Vaughan was using excessive physical discipline on [Y] who was 6 years of age at the time.  She saw three distinct hand marks on his back and buttocks after bathing him.  She was so concerned about the incident she reported it to the police and DoCS notwithstanding her son was the alleged perpetrator.  During cross-examination Ms V said she no longer held those concerns.  I was impressed however that she would be protective of her grandchildren including [Y].

4. [Y], like his sister, [X], has found himself in a fair share of trouble since Mr and Ms Vaughan separated.  In June 2007 Ms V reported an incident to the police in [Town M] after the mother had phoned her to say that [Y] was missing.  When Ms V attended the mother’s home she found that [Y] had been hiding in a cupboard.  He ran to Ms V and told her that his mother had slapped him and grabbed him around the throat before sitting on him.  The mother denied these allegations saying she only restrained him to stop him from running away.  The police did not pursue the matter after satisfying themselves that the child appeared to be in good health with no signs of physical injury.

5. On 1 November 2007 at 9.00am Ms V brought [Y] to [Town M Police Station] to report an incident involving Mr R.  [Y] told Police that Mr R picked him up by his arms and legs and threw him on the bed because he wasn’t going to bed and there was noise out the front of the house.  [Y] said Mr R called him a ‘little shit’.  Police did not observe any injuries on [Y].

6. The Police phoned the mother at about 1.30pm that day, who said the incident happened on 28 October 2007 which was the same day the Police attended the mother’s home.  Police record that on that day [Y] was abusive to his mother and Police.  The mother said [Y] refused to go to bed while Police were at the house.  She said Mr R picked [Y] up by his arms and carried him to bed then [Y] jumped off the bed and left his bedroom. She said this happened several times.  The mother was very upset when she was speaking with police on the telephone.

7. Police decided not to lay any charges against Mr R as in their view he was only trying to control [Y] and had not committed any offence.  The police however were concerned about the family’s situation because the children appeared to be out of control.   During their telephone call to the mother the officer could hear [Y] in the background abusing his mother and shouting: “She’s telling lies.”  Police strongly suggested to the mother that she seek further support through family services. The mother said she would try to cope with the situation herself as she did not want to lose custody of her children.

8. At 9.50pm that night [Y] had an argument with his mother and ran away.  Police patrolled the area for [Y] and contacted Ms V who confirmed that he had not contacted her or her son.  A short time later Ms V called police and informed them that [Y] had arrived at their home. The mother arranged with DoCS for [Y] to stay with Mr Scott in [omitted].  [Y] stayed with his biological father until March 2008 when he went to [Town T] to live with this mother, Mr R and [X].  Mr Scott said that sometime in 2007 he had received a call from the mother who informed him of her separation from Mr Vaughan and made arrangements with him to meet and get to know [Y].  He said he was happy to take [Y] at the request of the mother and DoCS in November.

9. He said that in March after [Y] had attended a funeral with the mother he told Mr Scott that he was missing his mother and wanted to go back to her.  It was for this reason that he contacted the mother and arranged for the child’s move to [Town T].

The circumstances of [X] and [Y] between January and May 2008

1. The mother moved to [Town T] in January 2008 to live with Mr R who had been posted there.  [Z] and [X] went with her.  [Z] returned to live with Mr Vaughan as a result of the Orders of Federal Magistrate Coker made on 26 March 2008.  [Y] moved from his father’s home to live with the mother in [Town T] at around this time.  It was not long after his move that the Department of Child Safety in Queensland and the police became aware of the family.  There are a number of concerning incidents recorded in the documents produced by those agencies and tendered into evidence.

2. The documents record a series of events where the children either presented at the [Town K Police Station], saying that they did not want to stay at home or the police were called to their home and concluded that the children were “running wild”.   The mother and her partner were recorded as completely unable to manage the children’s behaviours.  On more than one occasion when police arrived the mother was reported to be sobbing uncontrollably and stating that she couldn’t cope and on more than one occasion the mother asked for the children to be taken into care saying that she was scared she would hurt the children if they remained at the house. Most of the notifications included serious property damage done to the house, its contents, the yard and vehicles by the children. This included smashing windows, breaking furniture, kicking holes in doors and walls as well as deliberately flooding the house. On another occasion, the children locked their mother and her partner out of the house. The children also ran away from their home on several occasions.

3. [Y] was interviewed by a departmental officer on 28 April and said that school was boring and he got in trouble a lot, receiving detention daily.  He said that his home was not safe and his mother was not nice to him.  [Y] mentioned several incidents where he said: his mother hit him on the back of his legs with a plastic toilet cleaner; [X] hit him; and on an occasion his mother’s friend Tennille hit him across the head with a broom stick and then both his mother and her friend hit him around the head. He said his mother blamed him for things that [X] did.  [Y] said that his mother says to him, “Just kill me” and then laughs in a funny way.  He also said his mother says she is going to kill herself but never does. [Y] said his mother makes him angry. He said that she wouldn’t let him talk to Mr Vaughan.

4. [Y] said there was nothing bad about Mr R but that he couldn’t trust him.

5. [Y] said he did not like his biological father because he talked rude. He said when he stayed with his father his father talked to him about sex and said: “You should have seen when I had sex with Ms J, my willy was as big as a horse”.

6. [Y] said he wanted to “rub out” his mother and [X] and stay with his little sister and her Dad and her Nanna and Pop.  He said he wanted his mother, [X] and his father to die. He said, “I should just stand there and die”.

7. [Y] presented as extremely angry and upset when he talked about his mother and [X]. Towards the end of the interview he got frustrated and said that he had already seen DoCS in NSW and talked to them and they did nothing. He said he was sick of repeating himself and talking to people about it.

8. On 2 May 2008 the mother reported [X] and [Y] missing at 10.50pm after they left the home at 6pm. [Y] went to the Police Station at 11.45pm but at that time [X] was still missing. On 3 May 2008 [Y] was placed in care for two days at his mother’s request.

9. On 13 May 2008 [Y], after being transported in a police paddy wagon at 11pm so he could get emergency out of home care, is reported to have told an officer of the department that his mother blames him for everything and is a “psycho” and tells him “he should kill her”.  [Y] stated that if mum says to kill her it must be ok to kill himself.  [Y] told the departmental officer he wanted to live with his grandmother in New South Wales but it is not clear whom he meant.

10. On the night of 27 May 2008 police attended at the home after receiving a report from a neighbour.  The children caused a disturbance running up and down the street, ringing doorbells and banging letter boxes. When confronted by neighbours, they threatened to harm the neighbours’ pets. The children verbally abused and refused to cooperate with their parents or police.  [X] physically assaulted Mr R. Both children were arrested for breach of the peace, resisted arrest and were placed in the rear of the police van and taken to [Town K Police Station].  [Y] and [X] were placed in crisis care.

11. [X] was interviewed by officers of the department on 28 April, 26 and 28 May 2008.  During those interviews she talked about fighting with [Y] and that he made her angry.  She said that [Y] wasn’t coping with their mother’s separation from Mr Vaughan. She said that she can talk to her mother sometimes and sometimes her mother listens. But she also said she could not think of anything good about her mother and that her mother called the children “cunts” and that made [X] sad.  [X] said that she likes taking revenge on her mother.  She said that Mr R tried to be a father but sometimes he yelled at them.

12. [X] said that she was upset to have to leave NSW and missed [Town M]. She said that when they were living in [Town M] the children spent more time with Mr Vaughan than they did with their mother because their mother locked herself in her bedroom when she was home. [X] said she did not like Mr Vaughan, that he hit the children and was controlling. [X] said she felt responsible for the family’s problems because she disclosed Mr Vaughan’s physical abuse of her to her teacher.  She said that she felt sad about things with Mr Vaughan, mostly about court and that made her angry.

13. When she was told she could no longer live with her mother, [X] said that she would live with her maternal grandmother.  She said she did not like foster care.

14. The mother was also interviewed a number of times by departmental staff.  She said the children were doing well and had no behavioural problems at school but had serious behavioural problems at home.  She said that she was consistent with disciplining and rewarding the children but that the children laughed at her when she disciplined them. Ms Vaughan said that [X] and [Y] fight with each other and then “gang up on her”.  The mother said that [X] was missing [Z] and she was upset about the court case.

15. The mother said that she lacked family support and her partner was often away with work. The mother admitted to feeling overwhelmed and described [X] as being: “like a tornado through the house”.

16. On 14 May 2008 a department officer noted that the parents did not accept responsibility for the children’s behaviours and that the mother became angry when the department officers identified her as responsible for the children’s behaviours.

17. When she was interviewed on 26 and 28 May 2008 the mother asked for the children to go into temporary care.  She said she felt horrible and was exhausted.  She did not want the children to go into foster care.  She said that there were no family options for the children.  Although she could send the children to family in NSW she felt they would end up in foster care. She said that DoCS NSW is to blame for some of what has happened to her family.  She got upset with the departmental officers and was extremely agitated. On 26 May the interview ended when the children started fighting and the mother left the house and did not come back. On 28 May the interview ended when the departmental officers left the house because the mother became hysterical and volatile, blaming the department for not explaining things to her.

18. Mr R was also interviewed and said that the family needed help to find a place for [X] to live as she could not continue to live in their home.  He said that the house was his and the children had to follow the house rules. He said [X] was messy and dirty and when she became angry she would damage property and threaten her family members.  He said that the mother tried to discipline the children but they would call her a fat slut.

19. The records also include two Assessment of Harm and Risk of Harm Reports, a referral to a convenor for a family group meeting and a safety plan for the two children.  The reported assessment of harm and risk of harm in the first report (created 29 April 2008, updated 13 May 2008) was moderate for both neglect and abuse. In the second report (created 19 May 2008, updated 21 May 2008) the level of harm and risk of harm to [X] and [Y] was assessed as high for both neglect and abuse. Both reports identified the mother as the person responsible. The updated report stated that the children’s attachment to the mother was insecure, the children had not been given consistent parenting, and that the mother was not responsive to their physical, emotional and psychological needs and provided no commitment to her children.

20. The referral to a convenor for a family group meeting stated that the mother was “unwilling to believe she is responsible and justifies her response of having the children removed from the household as she threatens she may hurt them if they stay”.

21. The departmental officers concluded that the mother consistently refuses to take any responsibility for [X] and [Y]’s behavioural problems; she attributes the children’s behavioural problems entirely to Mr Vaughan’s conduct alone and does not accept that her parenting may be deficient in any way.

1. The department made arrangements for the children to travel to [Town S] to live with the maternal grandparents.

The circumstances for [X] since June 2008

1. The children arrived at the maternal grandparents’ home on at the end of May but by 7 June the maternal grandparents had called the police because they were unable to control the children’s behaviour.  [Y] had to be restrained by police to prevent him from damaging property and he was eventually placed in temporary foster care.  [X] remained with the maternal grandparents.

2. On the night of 3 July 2008 Police attended the maternal grandparents’ home following an incident after [X] refused to go to bed. The grandparents said [X] yelled and kicked several holes in the walls of her bedroom.  When Police attended 2 hours later [X] was asleep. The grandparents did not want [X] charged over the property damage.  The grandmother said she had sought assistance from DoCS and from the school principal.

3. On 25 July 2008 [X] assaulted a student outside [S School] by striking her on the face.  Police spoke with the maternal grandparents who expressed frustration in relation to the lack of assistance they received from DoCS and other government agencies.   [X] was issued with a warning.

4. On the night of 29 July 2008 the maternal grandmother called Police after [X] refused to go to bed and flew into a rage, yelling and swearing, packed a bag and left the house.  A short time later [X] returned and damaged a foot stool.  When police arrived they could hear [X] yelling “Fuck off”.  [X] would not tell police why she was so angry.  The grandparents did not express fear for their safety but were very concerned about [X]’s behaviour.

5. On the evening of 31 July 2008 [X] was taken to [J Hospital] Nexus Unit by ambulance for assessment. An incident occurred after [X]’s grandparents asked [X] to have a shower before watching television. [X] turned off the television, yelled out “Fuck off” and kicked the television cabinet. She went into her bedroom and slammed the door.  [X] came in and out of her bedroom slamming the door and shouted, “I’ll kill myself, I’ll bash my head against the wall”.  [X] laid down on the floor and hit her head on the floor until the grandparents restrained her. She kicked one of the grandparents and went into her bedroom and slammed the door.  [X] then climbed out the bedroom window.  The grandparents requested an AVO to restrict [X]’s behaviour.  Police spoke with [X] at the place she went to in [Town S]. It appears from the police record that they built a good rapport with [X] who spoke about why she was angry, partly because she doesn’t know her father, who didn’t want anything to do with her as a child.  [X] admitted saying she would kill herself and that she had previously attempted to kill herself. [X] was discharged from [J Hospital] on 1 August 2008.

6. On 4 August 2008 police removed [X] at the request of her maternal grandparents and DoCS placed her in a refuge at Parramatta before being placed at another refuge in Redhead the next day. The maternal grandparents were unable to care for [X] due to her violent, aggressive behaviour.  When police arrived [X] was being restrained by the grandfather.  When he released her she struck him on the arm and ran into her bedroom then yelled abuse at her grandparents.  Police records indicate that due to her behaviour and the type of police vehicle [X] was handcuffed and transported to [Town W Police Station] in the front passenger seat before being placed in foster care.

7. The welfare agencies of Queensland and New South Wales consulted each other over the placement of [X].  The Queensland department held serious concerns if [X] was returned to her mother’s care in [Town T].  They expressed concern that the mother was not able to cope with [X]’s behaviours and that Mr R did not want [X] living there.  Although the evidence is not clear the records show that for a short period [X] did return to the mother in [Town T] but her placement again broke down.  During that time [X] had lit two fires and [Y] was locking himself in his room to feel safe from his sister.  [X] went to live with one of her aunts in [Town M].

8. On 3 September 2008 at [R School], [Town M] [X] threw an apple at a student. A teacher observed this and reprimanded [X]. [X] then kicked the student from behind in the head and chased her around the school oval, pushed her over and kicked her to the head twice, one kick loosened the student’s tooth. The student curled into a ball and [X] continued kicking her in the back. The teacher ran over and stood between [X] and the student. [X] kicked the teacher’s leg and the teacher had to restrain [X].  [X]’s aunt came to the school and waited until police arrived.  It is recorded that at some point [X] threatened to assault her cousins and it was unclear whether [X] would be able to return to live at the aunt’s home.  It was recommended that [X] be cautioned.

9. On the night of 11 September 2008 police attended at the [N Accommodation Service] in response to an allegation that [X] and another girl assaulted a Youth Worker. The children then absconded from [N Accommodation Service] and were found by police at [E Shopping Centre].  Both girls were said to be difficult to control and attempted to run away from police on more than one occasion. The Youth Worker said that the assault was minor and refused to give details but said that the children could not stay at [N Accommodation Service]. The children were taken to [Town W Police Station], DoCS contacted and placed in alternative care.

10. On 16 October 2008 [X]’s six year old cousin disclosed that [X] had licked her vagina. On 18 November 2009 [omitted] Joint Investigation Response Team (JIRT) investigators attempted to interview the six year old in the presence of her mother.  The child was extremely shy and unwilling to talk to JIRT investigators. JIRT obtained a witness statement from the child’s mother. She said her daughter recently disclosed that [X] had licked her vagina and asked that she do the same thing to [X].  The mother said she did not want to take the matter further in her daughter’s interest and that she would not allow [X] access to her daughter again.

11. On the night of 5 October 2008 police attended at [A] House following an assault which was alleged to have occurred after [X] refused to go to bed at 9.30pm.  [X] was said to have punched a female carer to the mouth, head and stomach and kneed her in the groin.  The carer attempted to get into the locked office but could not and left the house in her car calling the caseworker.  [X] chased the car with a broom.  The caseworker arrived and spoke with [X].  The carer made a statement to police but declined to pursue criminal charges.

12. On the evening of 9 October 2008 police again attended at [A] House following an incident where a carer came across [X] attempting to access the locked office. The carer said [X] pushed her and she managed to push past her and locked herself in the office until police arrived.  [X] admitted pushing the carer but said she pushed her first.  [X] said that she knew it was wrong to push someone and was remorseful for her actions.  During the night of 9-10 October 2008 [X] wrote all over the walls within [A] House “Fuck you bitch” and “Fucken bitch”.  On the evening of 10 October 2008 [X] punched and hit two carers and threw food and items throughout the house.  Police attended and [X] told police her mother had hung up on her earlier in the night and that was why she behaved the way she had.  Police recommended [X] be officially cautioned in relation to the assaults and malicious damage.

13. On the night of 17 October 2008 [X] was taken to [Town W Police Station] and received a youth caution for assault and damaging property. Apparently the incident occurred after [X] refused to go to bed at 9.00pm.  [X] pushed and slapped the carers, kneed one of them in the groin and smashed a window of the house. The carers locked themselves in the office to escape [X] until police arrived

14. On the afternoon of 22 October 2008 [X] was arrested and charged with assaulting a carer at around midday. Apparently the incident occurred after [X] wanted food for lunch that was not available. Police requested bail conditions for the protection of [A] Youth Workers.

15. The same evening [X] was taken back to [Town W Police Station] and again charged with the assault of one of her carers, and with malicious damage. She was released on conditional bail, not to assault youth workers. The incident occurred after the youth workers refused to allow [X] to telephone her father back after he disconnected the call (she had already spoken for the allowed period of 20 minutes).  Police observed that [X] did not seem to know how to channel her anger. Police requested that the court order anger management counselling for [X].

16. On 10 November 2008 [X] was arrested and charged by police for extensively damaging two vehicles belonging to her carers.

17. On 11 November 2008 at 9.30 am [X] appeared at Broadmeadow Children’s Court in relation to charges laid on 10 November 2008.  She was released on bail under the condition that she follow all reasonable directions given to her by any [A] Youth Worker.  [X] returned to [A] House.  At 7pm she asked and was allowed to call her father. Then [X] asked to call her mother, she was not allowed to call her mother as she had called earlier in the evening and [X] had refused to speak with her.  An argument ensued, with [X] yelling, swearing and damaging property. She pushed and attempted to kick and punch a carer.  The carer restrained [X] until she appeared to be calm. [X] then stormed out of the house and returned a short time later. [X] then spoke to the on-call manager on the telephone and was allowed to call her mother.  Over the next hour [X]’s behaviour continued to be volatile.  Two carers went into the office, where [X] was not allowed to follow.  [X] put her foot inside the door and flicked the light on and off. The carers negotiated with her for 10 minutes before [X] removed her foot and one of the carers ushered her away from the office and closed the door.  The carers again called the on-call manager. While they were on the phone [X] began breaking furniture. When the carers returned to the house they observed that the kitchen window was smashed, it appeared that [X] had attempted to throw the microwave through the window.  [X] was trying to rip the door from the microwave. One of the carers restrained [X], who struggled violently, spat in his face twice and attempted to punch and kick him. After a short time he released [X], who stated that she was leaving, packed her bags and walked out onto the street. The on-call manager and case worked arrived and [X] returned to the house, collected more belongings and left again. One of the carers walked outside and saw that [X] was in one of the carers vehicles, had removed the steering column casing and was attempting to start the vehicle. The carer removed [X] from the car and called the police. About 12.30 am on 12 November 2008 police arrived, arrested [X] and drove her to [Town W Police Station]. [X] refused to be interviewed. She was then charged.  [X] showed no remorse for her actions. She was bail refused and transported to the Juvenile Correctional Facility at [omitted].

18. On 12 December 2008 at 7.30pm [A] Youth Services contacted [Town C Police Station] to report [X] missing. The carer said [X] left the residence around 6pm and thought that she might try to go to Sydney to see her biological father which is where police located her on 20 December 2008.

The allegations Mr Vaughan has sexually assaulted [X]

1. Ms KC the partner of Mr D gave evidence that in early January 2009 [X] suddenly walked off from the family group in a bad mood.  She recalls Mr D returning from checking on [X] looking upset and handing her a piece of paper with the words “Mr Vaughan raped me” on it.  After speaking to [X], Ms KC and Mr D took her to the [Town D Police Station].  The police records indicate that [X] disclosed Mr Vaughan had raped her when she was aged 8 to 10.  She could not remember times, dates and other details, but she remembered two occasions, she said both occasions happened at night in their home at [Town M].

2. [X] described the first incident as occurring some time in 2003 when she argued with Mr Vaughan. She said he grabbed her by the hair and forced her head into the brick wall of the fireplace causing her to black out. When she came to she found herself in the garden shed naked with Mr Vaughan present.  After he returned to the house she also went inside and collected some clothes

3. The second occasion was some time in the period 2003-2005.  [X] alleged Mr Vaughan put her on her back, held both her arms, squatted over her and forced her to swallow several tablets.  [X] said she woke up naked in the rear bedroom. Her stepfather was also in the bedroom and was also naked. She said her stepfather threatened to do the same thing to her younger sister if the [X] told anyone. She said her stepfather touched her breast and vagina and penetrated her vagina with his fingers causing her extreme pain. [X] said she cried and begged him to stop but her stepfather punched her in the face and yelled at her to stop.

4. After relaying these accounts [X] became distressed and police suspended the interview.  The next day Mr D told police that [X] had been living with his family for the last three or four weeks when he became aware she was in DoCS care.

5. In an electronic interview [X] is said to have repeated the allegation that her stepfather raped her between the ages of 8 and 10.  She said on one occasion he rammed her head into the fireplace and she woke up naked. On another occasion he shoved a metal pole between her legs and forced her to take medication. She woke up with blood and white stuff all over her.  She said he threatened to rape her younger sister if she told anyone.  [X] said when he assaulted her she would beg him to stop.

6. I have not seen the electronic interview.

7. Although the matter was accepted by JIRT there is no evidence of any follow up. The father gave evidence denying all allegations emphatically and said he has never been interviewed by police or JIRT in relation to these allegations.

8. [X] told Mr Paris that she saw people from JIRT on one occasion but did not know what had transpired with the JIRT investigation.  She said she saw a sexual assault counsellor on one occasion but didn’t believe that she needed to see a counsellor again and stated “I don’t want to talk about it”.  Mr Paris noted that [X]’s understandable reluctance to discuss the alleged sexual assault between Mr Vaughan and herself, combined with her resistance to sexual assault counselling, would suggest that her current behavioural challenges will continue indefinitely unless there is some therapeutic intervention.

9. Mr Paris was asked to comment on these allegations.  He expressed doubt as to their veracity saying the violent nature of the attacks would have inflicted significant pain and injury upon the child such that she would more than likely have required hospitalisation.  Mr Paris expressed the belief that with such injuries it would not have been possible for the mother not to notice bruising on the child at the very least.  The mother gave evidence of believing her daughter but of not being aware of the incidents at the time.  I share the views of Mr Paris and am not persuaded that the child could have suffered the injuries to the extent alleged.

[X]’s circumstances from April 2009

1. On 6 April 2009 Police received a call from a member of the public who witnessed [X] go into a public toilet in [Town S] with a man aged at least forty years old.  The witness saw a vehicle pull up and a man approach a young girl who was outside the toilet block. The man took the young girl by the arm and led her into the toilet block.  The witness entered the toilet block and the man and young girl were in a cubicle together with the door closed.  When the witness made his presence known the man left the scene in his car.  The witness provided a description of the car and its registration.  The witness asked the girl if she was ok but she did not disclose any assault to him.  The witness drove the girl to her maternal grandparent’s home and contacted police. Police subsequently attended at the maternal grandparents’ home and questioned [X].  [X] said the man forced her into the toilet block and forced her to perform oral intercourse on him.  She said the man threatened her, “I know your grandparents and I’ll tell ‘em if you don’t do it.  I’ll kill you if you dob me in”.  [X] said she did not know the man.  When the witness returned [X] to her grandparents she was upset. She took medications prescribed to her grandmother and was taken by ambulance to [J Hospital][J Hospital].

2. The tendered documents from the [J Hospital] [17] show that on 24 April [X] sought out assistance from staff in relation to the alleged sexual assault of her by Mr Vaughan and expressed concern for the welfare of [Z].

   [17] ICL 8

3. On 22 July 2009 JIRT refused a referral in relation to [X] that was made after the maternal grandmother became concerned that the child had been having sex with a 13 year old boy at their home.  The basis for the refusal appears not to be the lack of evidence of sexual assault but rather a case of consensual sex between peers.

4. On 23 July 2009 [X] went missing from the maternal grandparent’s home and the maternal grandmother told the police of the child having attempted self harm several days before hand by attempting to pierce her wrist with a skewer.  The child returned home 2 days later.

5. On 19 September 2009 at 6.45pm Police attended at the home of the maternal grandparents and observed bruising and swelling to the maternal grandfather’s left eye and minor lacerations to his right forearm.

6. The maternal grandfather told police that they had been watching television when he received a telephone call.  He said he asked [X] to turn down the television and [X] refused so he turned off the television.  [X] became enraged and threw a pair of scissors in the direction of maternal grandmother who then left the room.  [X] then threw a water bottle at maternal grandfather who asked [X] to walk outside the house to calm down. [X] refused. The maternal grandfather then attempted to lead [X] out of the house.  [X] pushed the maternal grandfather and struck him in the eye.  The maternal grandfather then attempted to hold [X] down and she struggled against him causing minor lacerations on his arm.

7. Police arrested [X].  [X] and the maternal grandmother refused to give statements. [X] was taken to [Town W Police Station]. Police applied for and were granted a provisional AVO on Mr W’s behalf.

8. [X] returned to live with her mother on 27 January 2010 and at the date of the hearing in March 2010 remained living there.  The mother’s evidence was that she had settled down both at home and at school.  She now attends the [A School].

[Y]’s circumstances since June 2008

1. I have already referred to the incident on 7 June 2008 where [Y] and [X] were living with the maternal grandparents where they required the assistance of the police because they were unable to control the children’s behaviour.  [Y] was placed into temporary foster care before returning to live with his mother and Mr R.

2. Unfortunately Y’s return to live with his mother in [Town T] was not successful. 

3. [Y] continued to experience problems especially at school.  Records from his school indicate that during 2009 a number of reports were made as to his behaviour.  These included allegations of anti-social behaviour, avoidance behaviour, non-compliance, verbal and physical aggression as well as bullying/harassment.  He was suspended from attending school for periods of up to 5 days on at least 3 occasions in 2009.  There were also a number of unexplained absences.  The mother engaged with the school to try and address some of these issues but was unaware of the extent of [Y]’s absences.

1. In March 2009 [Y] accused the school principal of assaulting him and on another occasion in May he exposed himself to a woman and young girl walking past him on his way home from school.

2. The mother gave evidence of [Y]’s behaviour deteriorating further in around September 2009 after [Y] talking to Mr Vaughan on the telephone.  The mother made arrangements with Mr Scott for [Y] to live with him sometime after this but prior to the interim hearing in November 2009.  On 30 November 2009 I made orders for [Y] to live with Mr Vaughan and he has continued to do so since that time.

3. A letter tendered by the father from the year 7 coordinator of [H School] in Aberdeen where [Y] attends appears to show a marked change in his presentation.  He is said to have attended school every day and participated in the school’s swimming carnival and cross country events as well as being a member of the under 13 rugby leave squad.  Mr O considered [Y] to be well liked by his peers and that he appeared to be happy and content in classes.  He is said to be enthusiastic in all he does at the school.  He responds to the directions and instructions given by teachers.  He was said to be coping with the demands of secondary school and exhibiting classroom behaviour, maturity and interactions typical of a thirteen year old boy.

The relationship between the children

1. It is not controversial that all three children have had fractured relationships with each other.  It is clear that [Y] missed his sister [Z] when she was living with her father and he remained in [Town T].  [Y]’s relationship with [X] however is seriously damaged.  [Z] is also caught up in this.  Evidence was given of a visit of all three children to the maternal family for Christmas 2009 which ended quickly after the children reacting negatively to each other.  The maternal family acted quickly to ensure a repeat of previous problems did not arise and the dispute escalate.  This dispute however appears to confirm the total breakdown in the sibling relationship especially for [Y] and [X].

[Z]’s circumstances

1. [Z] appears to have settled well in her father’s household and has expressed a clear wish to the family reporter to remain living there.  The mother remains concerned as to the child’s safety whilst in the father’s care as well as the potential for her relationship with the child to be compromised by Mr Vaughan.  I will address these issues when I consider s.60CC factors.

2. I note that the child’s school records do not highlight any concerns for the child whilst she has been living with her father.

Legal principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[18] 

   [18] S 60CA

2. The objects and principles of Part VII are found in s.60B(1) and (2) which provide:

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).  (emphasis added)

3. In this case Mr Vaughan is not a biological parent to [Y] although on the evidence he has been a significant person in his care welfare and development.  Parenting orders may be made in favour of a parent of a child or some other person.[19]  Because of this issue I have highlighted above those parts of the objects and principles that appear to apply solely to parents or specifically mention other people significant to the care of children.  In Aldridge v Keaton[20] the Full Court held that the matters set out in s 60B(2) (a)-(e) should be read conjunctively saying:

   While the emphasis placed on parents by the legislature is of particular importance, the relevance of the principle that a child spending time with people significant to their care, welfare and development must also guide consideration of relevant matters under s 60CC(2) and (3).

   [19] S 64C

   [20] (2010) 42 FamLR 369 at 381 para [45]

4. In Rice v Miller[21] the Full Court expressed the view:

   We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.

   [21] (1993) 16 FamLR 970 at 977

5. This approach was followed in Re Evelyn[22] where the Full Court held:

   …there is no presumption in favour of a biological parent nor any presumption in favour of the biological mother where the child is female.

   [22] (1998) 23 FamLR 73

6. In Aldridge v Keaton  the Full Court adopted the following approach:

   (i) a two step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent.  In other words is the applicant a person concerned with the care, welfare or development of the child (step 1) and if so, what order should be made in the best interests of the child.  This consideration may lead to an order for parental responsibility, an order a child live with, spend time and or communicate with the person, or that no such order be made (step 2);

   (ii)     s 65C does not prescribe a hierarchy of applicants.  The application falls to be determined under s 60CA guided by the objects and principles in s 60B(1) and s 60B(2) and based on consideration of relevant matters under s 60CC(2) and s 60CC(3).

7. I find on the evidence that Mr Vaughan is a person concerned with the care, welfare and development of [Y].  I have arrived at that finding because he has fulfilled the role of step-father for the child since he was a baby and from the evidence it appears that although [Y] has come to know his biological father he identifies Mr Vaughan as his psychological father.  Being satisfied that Mr Vaughan is a person concerned with [Y]’s care I will proceed to consider what is in [Y]’s best interests in accordance with the legislative framework.

8. In determining what is in a child’s best interests I must consider the matters set out in s 60CC.  Some of these provisions also appear to relate to parents only.  The court is assisted by the decision of Moore J in Potts & Bims[23] where her Honour considered the approach to be adopted in cases between a parent and a non-parent.  Her Honour had this to say:  

   The provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to ‘parent/s’ which, given the word’s ordinary meaning and in the absence of an expanded definition or some other descriptor such as ‘party’, means a number of sections do not apply when assessing ‘best interests’ in proceedings that are not between parents but between a parent and a non-parent [eg. relative]. Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However, a number are expressed to apply to ‘parent/s’ and so are excluded in proceedings of the latter kind. For example, paragraphs 60B(1)(a), (c), and (d) fall away and what remains is paragraph (b); namely, the object of protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraphs 60B(2) (a), (c) and (d) fall away as underlying principles and there remains paragraph (b); namely, [‘except when it would be contrary to a child’s best interests’] ‘children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)’. With objects and underlying principles as a guide, the determination of what is in a child’s best interests requires the court to consider both ‘primary considerations’ and ‘additional considerations’ set out in s 60CC. But again the use by the legislature of the word ‘parent/s’ in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraph (c), (e), and (i). However, that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) [capacity to provide for needs] or, if nowhere else, under paragraph (m) [any other fact or circumstance relevant]. On that same analysis, the presumption of equal shared parental responsibility imposed by s61DA and, if it applies and the order is to provide for equal shared parental responsibility, consideration of the child/ren spending equal time or substantial and significant time, as set out more particularly in s65DAA, are not prescribed pathways in the reasoning process towards a best interests conclusion in proceedings between a parent and non-parent. Nonetheless, the particular applications may make it necessary to address those outcomes in any event.

   [23] [2007] FamCA 394 at para [8]

9. In this particular case I am satisfied it is appropriate to consider all of the factors set out in s.60CC(2) and (3) as if they are applicable to all three parties but in doing so I will be relying on s.60CC(3)(m) where the relevant consideration would seemingly exclude non-parents. 

   
   

   I have arrived at this decision because I am satisfied that [Y] identifies Mr Vaughan as his psychological father and Mr Vaughan has been the father figure in his life ever since he was a small baby.  To exclude Mr Vaughan from those considerations that specifically relate to parents would in the circumstances be artificial and may have the potential to distort the decision making process leading to a decision that may not be in the child’s best interests.

Parental responsibility

1. When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[24]  This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the children’s best interests for it to apply.[25]

   [24] S 61DA

   [25] S61DA(2) & (4)

2. Although the presumption of equal shared parental responsibility only applies between parents[26] I am satisfied that it is open to the court[27] and in this case appropriate to consider whether a parental responsibility order should be made in relation to [Y] that includes Mr Vaughan. I am satisfied of this because the mother seeks such an order and because Mr Vaughan has been [Y]’s father figure ever since he was a baby.

   [26] S 61DA

   [27] S 61D provides for a parenting order conferring parental responsibility on a person rather than a parent of the child; Aldridge v Keaton (2010) 42 FamLR 369

3. As for the presumption itself I am satisfied that it has been rebutted given the evidence of serious family violence and allegations of sexual abuse in relation to [X].

4. The ICL argued that this was a case where the parties should not share their parental responsibility and that a sole parental responsibility order should be made in Mr Vaughan’s favour in relation to both children.  The mother argued for an equal shared parental responsibility order that included herself, Mr Scott and Mr Vaughan in relation to [Y]. The mother is concerned about being excluded from her children’s lives if the children do not live with her and she does not have parental responsibility.  Her concerns are important and I have given them significant consideration.  The taking away from a parent their responsibility for making decisions about a child is a most serious order to contemplate.  It should, in my view, only be contemplated when a court is of the mind that the parents or other person(s) will not be able to cooperatively and effectively make decisions for the children.

5. I am satisfied this is one of those cases.  When I consider the evidence I am satisfied that Mr and Ms Vaughan do not have the sort of relationship that would enable them to have a meaningful discussion about the needs of either of the children.  They are unable to communicate at all given the level of distrust between them.  I am further satisfied that although Mr Scott would be able to have effective discussions with Ms Vaughan about [Y] I do not have confidence that Mr Scott would be able to have discussions with Mr Vaughan given he has adopted the mother’s view of Mr Vaughan.  It is important that if the sharing of parental responsibility is to work for the benefit of the children the adults involved must be able to communicate effectively.

6. For this reason and because I have arrived at the decision that the children should live with Mr Vaughan I am satisfied that it is appropriate for Mr Vaughan to have sole parental responsibility. 

7. I propose to make orders that would require Mr Vaughan to keep the mother informed of any decisions he has made in relation to the children and Mr Scott informed in relation to those decisions that affect [Y]. 

Consideration of equal time or substantial and significant time

1. I am not required to consider the children living with any of the parties in either an equal time basis or a substantial and significant time basis because I have found the presumption of equal shared parental responsibility does not apply and I have made a sole parental responsibility order.  In any event given the parties live significant distances apart from each other it could not be said either of those options would be reasonably practicable.[28]

   [28] See discussion of High Court of Australia in MRR v GR [2010] HCA 4; (2010) 42 FamLR 531

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC.  In order to limit duplication I propose to group together a number of these factors.  For reasons that I have discussed earlier in this judgment, although some of these considerations relate to parents rather than parents and other persons, I am satisfied that it is appropriate to consider the three parties in my considerations below. 

The children’s relationships

S.60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents;

S.60CC(3)(b)  The nature of the relationship of the child with:

(i)   each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

S.60CC(3)(c)  The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

S.60CC(3)(d)  The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

S.60CC(3)(m)  Any other fact or circumstance that the court thinks is relevant.

1. I am satisfied on the evidence that [Z] has a good and positive relationship with both of her parents.  This has remained so despite the upheaval she has experienced as a result of: her parents’ separation; the mother’s relocation to far north Queensland; the child’s subsequent return to live in [Town M] with her father and paternal grandparents; her separation from [X]; and the period of time separated from [Y].

2. The mother remains concerned that Mr Vaughan will not promote a continuation of her relationship with [Z] if she continues to live with him and cited a number of ongoing difficulties with communication between mother and children such as [Z] and [Y] not always being there for telephone calls and that the children were not natural when communicating with her.  Whilst I accept the mother honestly believes this to be the case on the evidence I am not persuaded the mother’s concerns can be objectively sustained.  Mr Vaughan presented as understanding the need for the children to have an ongoing relationship with the mother and appeared to be open to both [Z] and [Y] communicating regularly with the mother and spending time during the holidays with her provided they were safe from exposure to inappropriate behaviour from [X].  When it was put to him that the children may benefit from having Skype sessions with their mother his immediate response was that [Z] would love that.

3. I am satisfied that Mr Vaughan will promote an ongoing and positive relationship between the children and their mother.

4. The mother also believes [Z] is at risk of harm with her father.  I am satisfied she holds to this belief even though she sought orders for the child to spend time with Mr Vaughan.  In seeking those orders she also sought a proviso that he live with his parents whilst the child is spending time with him.  I do not have confidence the mother will move on from these fears she holds for [Z]’s welfare and therefore there will be potential in the future for the mother to be reluctant to promote a relationship between [Z] and her father.

5. [Y]’s relationship with his mother is not good and the family report writer formed the view from his observations that there was a poor prognosis for that relationship.  The relationship has seriously broken down and there will be a need for some time and patience before it is repaired.  Part of this breakdown relates to the dynamic of [X] in the mother’s household.  I am satisfied that [Y] should spend some time with his mother and [Z] away from [X] at least initially in the hope that the relationship between mother and son can be repaired.

6. [Y]’s behaviour in his mother’s home had been challenging not only for the mother but also his school, the police and officers of the state welfare agencies.  This sort of behaviour has not been evident since [Y] has been living with Mr Vaughan.  I am satisfied that [Y] has actively sought out Mr Vaughan and has a closer relationship with him than with his mother and his biological father. 

1. Whilst the mother and Mr Scott believe that Mr Vaughan has undermined the child’s relationship with them, even if that were the case, which I am not persuaded, the reality for [Y] is that he has had a troubled relationship with his mother for a very long time that has seen him engage in inappropriate, destructive and criminal behaviours.  This is likely to continue if he returns to live with his mother.  Although Mr Scott stepped up to the mark and took [Y] into his care in 2007 and 2009 I am not satisfied he and [Y] have a close enough relationship for [Y] to receive the sense of stability he clearly needs in order to settle down and focus on his schooling and friendships as well as developing a more positive relationship with his mother and Mr Scott.

2. Mr Paris concluded that [Y]’s psychological father was Mr Vaughan and would continue to be so.  Mr Paris did not believe it would be in [Y]’s interest to live primarily with Mr Scott because of the peripheral nature of their relationship.  Mr Scott was concerned that Mr Vaughan would not support [Y] having any relationship with him but after hearing Mr Vaughan give evidence I formed the view that he recognised the importance of [Y]’s relationship with Mr Scott and would foster it.

3. I find that [Y] and [Z] have a close relationship and that it is important for them to live in the same household.  [Y] clearly missed his sister when she went to live with Mr Vaughan in [Town M].  The same can not be said for [Y]’s relationship with [X].  That relationship is so problematic that it can only be described as explosive.  I am not sure how that will be repaired but I am sure the mother does not currently have the capacity to address this issue and if [Y] is to live in the same household as [X] there is the real likelihood of a return to the past troubles experienced by the mother and Mr R.

4. I am also satisfied that the children have a close relationship with Mr Vaughan’s parents.

5. When I weigh all of these considerations I am satisfied that the proposals of the ICL and Mr Vaughan are to be preferred over the proposals of the mother and Mr Scott.

Risk of harm

S.60CC(2)(b)  The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

S.60CC(3)(j)  Any family violence involving the child or a member of the child’s family

S.60Cc(3)(k)  any family violence order that applies to the child or a member of the child’s family, if:

(i)     The order is a final order;

(ii) The making of the order was contested by a person

1. The mother remains very concerned that Mr Vaughan is a violent person and that the children would be at risk of physical harm with him.  She also remains concerned that [Z] may be at risk of sexual abuse with Mr Vaughan.

2. Mr Paris formed the view that there was no evidence to suggest that either [Z] or [Y] were at risk of physical or psychological harm whilst in the primary care of Mr Vaughan.  He arrived at this conclusion notwithstanding the significant evidence in relation to Mr Vaughan being convicted for the assault on [X].  I do not share the family report writer’s unequivocal assessment of the level of risk of physical harm.  Mr Vaughan has been convicted of assault occasioning actual bodily harm of [X].  Whilst he maintains a denial of this charge he has admitted to using physical discipline on the children.  No doubt [X]’s behaviour was very challenging for him.  I accept the submission of the ICL that there is a risk of physical harm to the children in the care of Mr Vaughan.  This harm is somewhat minimised by the behaviours of both [Y] and [Z] not being as challenging as that of [X] whilst in his care and because he continues to live with his parents.  Ms V was a very impressive witness who I find would ensure the children are protected and free from harm.  Mr Vaughan’s mother reported him to the Department of Community services when [Y] was a young child because of her concerns that Mr Vaughan may have physically hurt him.  She no longer has those concerns.  [Z] told Mr Paris she has never been scared of her father.

3. For these reasons I find that whilst there is a risk of physical harm to the children in the care of Mr Vaughan I am not persuaded that it is an unacceptable risk.

4. I am also not persuaded that there is an unacceptable risk of sexual abuse if the children remain in the care of Mr Vaughan.  Although the mother appeared deeply worried about this issue and argued that the disclosures made by [X] would lead the court to find there is a risk I am not satisfied there is sufficient evidence to make that finding.  Although the police and Department of Community Services records indicate that [X] has made serious allegations of sexual abuse perpetrated upon her by Mr Vaughan there is no record of any investigation.  Mr Vaughan denied the allegations and denied ever being interviewed in relation to them.  I share the scepticism of Mr Paris, discussed earlier in this judgment, as to the veracity of the disclosures.

5. Mr Paris concluded that all three children have suffered psychological damage as a result of the dysfunctional family dynamics.  This has been longstanding and included the time when Mr and Ms Vaughan were living together but after the separation the family life became much more dysfunctional and deteriorated further once the mother relocated to [Town T].

6. The ICL argued that the children were at an unacceptable risk of physical and psychological harm if they lived in the mother’s home.  The long litany of problems has been set out above.  Ms O’Rourke argued that the mother does not appear to accept responsibility for her part in the behaviours of the children sheeting home much of the blame to Mr Vaughan.  I accept this submission because right through the mother’s evidence and submissions she sought to blame Mr Vaughan.  This lack of insight on her part will not assist her in improving her parenting.  Whilst I accept the mother loves all of her children she lacks insight as to her inability to affectively parent them at this stage in her life.  When Mr R gave evidence that the mother has called the children names such as ‘little bastards’ and ‘little cunts’ I noticed the mother express surprise.  By the time the mother made her oral submissions at the end of the trial she appeared to accept that if Mr R had heard her do so then she must have.  Regrettably I find the mother does not realise the harm she has inflicted on the children by calling them these names. 

7. I am satisfied that the children are at a real and unacceptable risk of harm in the mother’s household.  I have no confidence that the circumstances the mother and Mr R found themselves in when [Y] and [X] were living with them would not be repeated if [Z] and [Y] returned to the mother’s care.  The children, especially [Y] would be exposed to unacceptable behaviour by [X] and [Y] would more than likely return to his destructive and unsociable behaviours.  There is a real risk of violence between [X] and [Y].  The risk of psychological harm to both [Y] and [Z] is evident.  Mr R expressed concern about the possibility of the children returning to their home in [Town T].  I am satisfied he has a greater insight to the problems he and the mother would face if the children were to be returned.

8. Notwithstanding the concerns of the mother and Mr Scott as to the potential for Mr Vaughan to undermine the parent child relationships I am not persuaded there is any evidence the children would be at risk of psychological harm in the care of Mr Vaughan in the current circumstances.

9. Mr Paris formed the view that it was in both children’s best interests for them to remain living in the primary care of Mr Vaughan and I am persuaded that under these considerations the children’s best interests would be served living with Mr Vaughan.

The child’s views

S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. In the first family report which was released on 19 January 2009 [Z] was emphatic that she enjoyed living with her father, presenting him as a supportive parent, and further adding that she had a close relationship with her paternal grandparents.  She expressed that she was missing [Y].  This interview took place almost 12 months after [Z] went to live with her father.  By the time the second report was released November of 2009 [Z] maintained her view.

2. Both [Y] and [Z] have clearly expressed to Mr Paris a wish to live with Mr Vaughan.

3. The mother says that [Y] is influenced by a number of factors but particularly a desire to live in the [Town M] area as opposed to living with Mr Vaughan and as a result of Mr Vaughan undermining her relationship with [Y].  I find that that is not the case.

4. I am satisfied that the wishes of the children should be afforded significant weight.  This is especially so for [Y] who has had a problematic relationship with his mother.  He has clearly settled since living with Mr Vaughan which leads me to conclude that his current circumstances are consistent with his deeply held views.

5. [Z] finds it difficult that her mother lives so far away from her and she sometimes misses her but I am satisfied her preference is to live with her brother in Mr Vaughan’s home.

Practical difficulties

S.60CC(3)(e)     The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

S.60CC(3)(m)   Any other fact or circumstance that the court thinks is relevant

1. The distance between the home of Mr Vaughan and the mother make spending time arrangements problematic.  I am persuaded that there would be a benefit for the children spending longer than half school holidays with their mother given the significant distance.

2. Mr Scott lives in [omitted] which, although not close to [Town M], does not pose the same difficulties as that between Mr Vaughan’s home and the mother’s.

3. The mother and Mr Vaughan both expressed an interest in installing Skype to their computers so the children can communicate better with their mother.  Whilst this will never replace face to face time it will provide some benefit to the children to see their mother though this technology.

Parental capacity and responsibility

S.60CC(3)(f)  The capacity of:

(i)   each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs 

S.60CC(3)(i)  The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

S.60CC(4) The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent

1. Although all parties are able to feed and cloth the children I have serious concerns as to the mother’s capacity to parent the children at this stage in her life.  I have already addressed this issue when considering the risk of harm issues.  Unless the mother is able to move on from blaming Mr Vaughan for all of the family’s problems and seek out assistance from the child welfare agencies in Queensland I do not have confidence she will be able to gather the insight necessary to improve her parental capacity.  I accept the mother has sought out help form various agencies in the past but it would seem that she has been unable to follow through with it and is most untrusting of the welfare agencies.

2. The mother’s unilateral move whilst understandable given her new relationship with Mr R showed a lack of insight into the needs of the children at that time.  The geographical distance continues to be an issue especially for [Z] who is missing her mother.

3. I am satisfied that these considerations favour the children living with Mr Vaughan.

Background issues

S.60CC(3)(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

S.60CC(3)(h)  if the child is an Aboriginal child or Torres Strait Islander child

1. The children do not identify as Aboriginal or Torres Strait Islander. 

2. [Z] is a young girl fast approaching her teenage years.  Although she may want to seek out her mother more in the coming years I am satisfied she has a good relationship with her paternal grandmother who will assist her with issues she may find uncomfortable raising with her father.

Limiting further proceedings

S.60Cc(3)(l)  Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Should the children live with the mother there is the potential for the placement to breakdown especially if [X] is also living there.  The mother’s household has been too chaotic for the court to have any confidence they will find a stable home there.  That is not the case in Mr Vaughan’s household.  I am concerned that the Department of Child Safety in Queensland may need to intervene again if the children are returned to live with the mother further de-stabilising the children.

2. This consideration favours the children living with Mr Vaughan.

Conclusion

1. When I weigh all of the considerations I am persuaded that the best interests of both children warrant them living with Mr Vaughan and that he have sole parental responsibility for them.  Whilst I would have preferred the children spending more time with their mother the tyranny of distance makes that problematic.  Whilst it is important for [Y] to also have a relationship with Mr Scott it is important for him to consolidate the stability he has achieved by living with Mr Vaughan and develop his relationship with Mr Scott over time.

2. For these reasons I make the orders set out at the beginning of this judgement.

I certify that the preceding one hundred and eighty-fivefive (185) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Associate: 

Date:  23 August 2010