Vega & Drake
[2023] FedCFamC2F 400
•6 April 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vega & Drake [2023] FedCFamC2F 400
File number(s): NCC 1290 of 2020 Judgment of: JUDGE KEARNEY Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – Parenting – where three children aged 6, 5 and 3 have been exposed to risk of harm (abuse / serious neglect / family violence) by their parents – where both parents have impaired parenting capacity – appropriate for paternal grandparents to have equal shared parental responsibility – as both mother and father pose unacceptable risk of harm to the children, children to live with paternal grandmother - injunctive relief and prohibitory orders to ameliorate risk when spending time – change of surname for youngest child - maintenance of meaningful relationships – protection of children from harm – children’s best interests Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth)
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Dasreef Pty Limited v Hawchar [2011] HCA 21
Eastley & Eastley [2022] FedCFamC1A 101
Godfrey & Saunders [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554
Mazorski & Albright [2007] FamCA 520
Medlon & Medlon (No. 6 (Indemnity Costs) [2015] FamCAFC 157
Napier & Hepburn [2006] FamCA 1316
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311
Russell & Close [1993] FamCA 62
Slater v Light [2011] FamCAFC 1
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 2 Family Law Number of paragraphs: 114 Date of hearing: 20-22 February 2023 and 17 March 2023 Place: Newcastle Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Powe & White Family Lawyers Counsel for the First Respondent: Ms McMullen Solicitor for the First Respondent: Legal Aid NSW Solicitor for the Second Respondents: Appearing in person Solicitor for the Third Respondent: Appearing in person Counsel for the Independent Children's Lawyer: Mr Turnbull Solicitor for the Independent Children's Lawyer: NLS Law ORDERS
NCC 1290 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VEGA
Applicant
AND:
MS DRAKE
First Respondent
MS ALLISON & MR B VEGA
Second Respondent
MS DONALDSON
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE KEARNEY
DATE OF ORDER:
6 April 2023
THE COURT ORDERS THAT:
1.All existing parenting orders in these proceedings be discharged.
2.The second respondents, MS ALLISON (‘the paternal grandmother’) and MR B VEGA (‘the paternal grandfather’) shall have equal shared parental responsibility for the children, X born in 2016, Y born in 2018 and Z born in 2019 and collectively referred to as ‘the children’.
3.Within seven (7) days of making a decision about the children’s health or education, the paternal grandfather or the paternal grandmother shall advise the applicant, MR VEGA (‘the father’) and the respondent, MS DRAKE (‘the mother’) of such decision/s.
4.The children shall live with the paternal grandmother.
5.In the event that the father moves out of the paternal grandmother’s home, the paternal grandmother is restrained and an injunction shall issue prohibiting her from causing or allowing the children to live with the father.
6.The father shall spend time with the specified child or children:
(a)Until 6 April 2024:
(i)At times agreed in writing between the paternal grandmother and the father PROVIDED such time occurs in her presence, and unless otherwise specified by these Orders; and
(ii)On one occasion during the last week of each month for a period of two (2) hours supervised by C Family Services (‘the supervisor’) on a day and time as arranged by the supervisor which is mutually convenient to the paternal grandmother and the father; and
(iii)At times when the children may be spending time with the paternal grandfather at his residence THEN as agreed in writing between the paternal grandfather and the father PROVIDED such time occurs in his presence of the paternal grandfather, and otherwise as specified by these Orders; and
(iv)At times agreed in writing for two (2) hours each week at a public place between the paternal grandmother and the father and only with X and Y; and
(v)At times agreed in writing for two (2) hours each week at a public place between the paternal grandmother and the father and only with Z.
(b)From 7 April 2024, at times as agreed between the paternal grandmother and the father PROVIDED THAT
(i)such time does not interfere with the time or communication the specified child or children would spend or have with the mother as provided for in these Orders; and
(ii)the children shall not spend overnight time with the father away from either the presence of the paternal grandmother or the paternal grandfather UNTIL the father has attended the C Family Services D Program for a period of at least 12 months.
7.The children shall spend time with the mother:
(a)During school terms as exercised by the children’s school (as may be applicable):
(i)from the conclusion of school (or 3:00pm) on Friday until the commencement of school (or 8:30am) on Monday and on each alternate weekend afterwards, commencing on Friday 28 April 2023; and
(ii)from the conclusion of school (or 3:00pm) on Wednesday until the commencement of school (or 8:30am) on Thursday and on each alternate week afterwards, commencing on Wednesday 3 May 2023.
(b)During school holidays as exercised by the children’s school (as may be applicable):
(i)For the Autumn 2023 school holidays from 12.00noon Easter Sunday 9 April 2023 until 12.00noon Sunday 16 April 2023;
(ii)For the Autumn, Winter and Spring school holidays commencing with the Winter 2023 school holidays - from 9:00am on the first Sunday until 12:00noon on the middle Sunday; and
(iii)For the Summer school holidays - “week about” for seven consecutive nights (‘a week’) :
A.In 2023 and each alternate year afterwards from 9:00am on the first Sunday and concluding at 12:00noon on the following Sunday and each alternate week afterwards;
B.In 2024 and alternate year afterwards from 9:00am on the second Sunday and concluding at 12:00noon on the following Sunday and each alternate week afterwards.
8.To ascertain the resumption of school term time spent by the children with the mother following any of the school holiday periods, the sequence of alternating weekends shall be maintained (although not taken during school holidays) and used in calculating time in these orders.
9.Notwithstanding any other order and unless otherwise agreed in writing between the paternal grandmother and the father and the mother (as may be applicable), the children shall spend time with the mother and the father (as may be specified) on the following special occasions:-
(a)Mother’s Day weekend – with the mother from the conclusion of school (or 3:00pm) Friday until the commencement of school (or 8:30am) Monday;
(b)Father’s Day weekend – with the father from the conclusion of school (or 3:00pm) Friday until the commencement of school (or 8:30am) Monday;
(c)Christmas period –
(i)in 2023 with the father from 2:00pm Christmas Eve until 2:00pm Christmas Day and with the mother from 2.00pm Christmas Day to 2.00pm Boxing Day; and
(ii)in 2024 with the mother from 2:00pm Christmas Eve until 2:00pm Christmas Day and with the father from 2:00pm Christmas Day to 2:00pm Boxing Day;
(d)Children’s birthdays –
(i)with the father and the paternal grandmother from 3:00pm to 6:00pm should the children be spending time with the mother on those days; and
(ii)with the mother from 3:00pm to 6:00pm should the children be living with the paternal grandmother on those days.
10.Changeovers for the children to spend time with the father shall be as follows:
(a)When time is to be supervised by the supervisor THEN as directed by the supervisor; and
(b)Otherwise, at a location nominated by the paternal grandmother.
11.Changeovers for the children to spend time with the mother shall be as follows:
(a)On a school day - by the mother or her nominee collecting or returning Y and X to school and Z to the early childhood education centre (‘child care’) nominated in writing by the paternal grandmother; and
(b)On any other day – by the mother or her nominee collecting or returning the children to the paternal grandmother or her nominee at the paternal grandmother’s residence or another location (within 10 kilometres of the paternal grandmother’s residence) nominated in writing by the paternal grandmother PROVIDED THAT if a nominee or alternate location is nominated, the paternal grandmother shall give the mother at least 48 hours’ written notice of this information via text message to the mother’s mobile telephone.
12.Unless otherwise agreed in writing between the mother and the paternal grandmother, on days when the children have not spent time with her, the mother shall communicate with the children by telephone or FaceTime each Tuesday and Thursday between 6:00pm and 6:30pm, and the paternal grandmother shall ensure that the children are available to receive the telephone or FaceTime call.
13.The father is restrained and an injunction shall issue prohibiting the father from being present or within earshot of the children during any communication they have with the mother pursuant to Order 12.
14.The father shall have communication with the children as agreed in writing between the paternal grandmother and the father provided such communication does not interfere with the time or communication the children spend or have with the mother.
15.By 4:00pm Tuesday 11 April 2023, the paternal grandmother, the paternal grandfather, the father and the mother shall notify each other of their residential address, contact email address and contact telephone number/s and will advise each other of any changes to that information within 48 hours of such change occurring.
16.Until Z commences primary school, Z shall be enrolled and attend child care for at least four (4) days a fortnight.
17.X and Y shall continue their enrolment and attendance at E School, City F, New South Wales until they each respectively, complete Year 6.
18.In the exercise of their equal shared parental responsibility, the paternal grandmother and the paternal grandfather shall be at liberty to enrol the children into any after-hours school program that is attached or geographically close to the child/children’s school/s and/or school holiday programs PROVIDED THAT such activities do not interfere with the time the children spend with the mother.
19.The paternal grandmother and the paternal grandfather shall do all acts and things to ensure that –
(a)By 20 April 2023, each child attends upon a general practitioner to obtain a referral to a paediatrician;
(b)Within 14 days of obtaining such referral, the paternal grandmother and the paternal grandfather shall contact a paediatrician/s to book the next available appointment/s; and
(c)the children attend all paediatric appointments as deemed necessary by the treating by the paediatrician/s and follow all treatment plans and recommendations made by the paediatrician/s.
20.The paternal grandmother and the paternal grandfather shall do all acts and things to comply with any treatment plans (including attendance at appointments) and/or recommendations made by any of the children’s medical or allied health professionals including but not limited to:
(a)speech therapy for X and Y;
(b)hearing assessments for the children;
(c)occupational therapy for the children;
(d)dental treatment for the children.
21.The paternal grandmother and the paternal grandfather shall do all acts and things to arrange an assessment for each of the children under the National Disability Insurance Scheme (NDIS) and otherwise co-operate and comply with any NDIS plan that may be created for the children or any one of them.
22.To facilitate the timely implementation of Orders 19 to 21, the mother shall forthwith provide a copy of the children’s Medicare card(s) to the paternal grandmother and the paternal grandmother.
23.By 13 April 2023, the mother shall do all things and acts to notify Service NSW, Services Australia and Centrelink that the children are not living with her and are living with the paternal grandmother pursuant to an order of this Court.
24.The paternal grandmother, the paternal grandfather, the mother and the father shall as soon as possible notify each other by SMS message upon any of the children:
(a)becoming seriously ill; or
(b)being involved in an accident or in an emergency that requires hospitalisations (including presentations at an emergency department); or
(c)suffering a serious injury requiring urgent medical attention.
25.The paternal grandmother, the paternal grandfather, the mother and the father are authorised (and a copy of these orders shall be sufficient authority) for each of them:
(a)To receive such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school or early childhood education centre which the children may attend from time to time;
(b)To attend all functions to which parents are normally invited by any school or early childhood education centre which the children may attend from time to time, including but not limited to concerts, awards ceremonies, assemblies, sports days and parent-teacher evenings;
(c)To receive such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner or allied health professional which the children may attend from time to time;
(d)To receive a copy of any NDIS plan that the children may be subject to.
26.The paternal grandmother, the paternal grandfather, the mother and the father shall keep each other informed of any medications prescribed for the children by a registered medical practitioner or other health professional from time to time and at the time of any changeover, provide to the receiving parent the medication and appropriate instructions as to dosage and administration.
27.At the commencement of each school term, the paternal grandmother shall notify the mother of any after-school activity that the children are enrolled in.
28.Within seven (7) days of enrolment, the paternal grandmother shall notify the mother of any high school that the children shall be attending.
29.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction shall issue prohibiting him from:
(a)bringing the children into contact with the mother whilst he is spending time with them;
(b)bringing the children into contact with any partner or girlfriend he may have for a period of 12 months;
(c)discussing with the children these proceedings or any allegations made within these proceedings;
(d)denigrating the mother, or Mr G or the mother’s family to or in the presence or hearing of the children and will remove the children from the presence of any person who is doing so; and
(e)posting content or information (including photographs) about the mother or the children on his social media accounts or providing or permitting any person from doing so.
30.Pursuant to s 68B of the Family Law Act 1975 (Cth), the mother is restrained and an injunction shall issue prohibiting her from:
(a)bringing the children into contact with the father whilst she is spending time with them;
(b)discussing with the children these proceedings or any allegations made within these proceedings;
(c)denigrating the father, or the father’s family to or in the presence or hearing of the children and will remove the children from the presence of any person who is doing so; and
(d)posting content or information (including photographs) about the father or the children on her social media accounts or providing or permitting any person from doing so.
31.The mother is required and an injunction shall issue requiring her to:
(a)cause each of the children to attend school and child care on the days that they are required to attend.
(b)cause each of the children to attend any after-school activities that may take place during the time that they otherwise spend with her.
32.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, the mother is restrained and an injunction shall issue prohibiting her from allowing the children, or any of them, to be left in the sole care of Mr G.
33.By 20 April 2023, the father shall do all acts and things to apply for entry into the C Family Services D Program and shall engage in such program (at his sole cost) for at least 12 months for a minimum of one attendance each month, and within seven (7) days of completion of each course, the father shall provide a certificate of completion to the paternal grandmother and the paternal grandfather.
34.By 6 April 2025, the mother shall complete a H Program and J Program and within seven (7) days of completion of each course, the mother shall provide a certificate of completion to the paternal grandmother and the paternal grandfather.
35.The paternal grandmother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales for the child registered as Z born in 2019 to now be registered as Z born in 2019 and, for the purposes of this order:
(a)Pursuant to s 28(5) of the Births, Deaths and Marriages Act 1995 (NSW), it is requested that the Registrar register the child’s name in the form specified herein on the basis that the Court approves the proposed change of name;
(b)The paternal grandmother is permitted to provide a sealed copy of these orders to the Registrar of Births, Deaths and Marriages for the State of New South Wales;
(c)The father is solely responsible for the costs of the application for change of the child’s name; and
(d)The paternal grandmother shall do all acts and things necessary to cause Mr Vega to be registered with the Registrar of Births, Deaths and Marriages for the State of New South Wales as the father of Z born in 2019.
36.The paternal grandmother and the paternal grandfather are restrained and an injunction shall issue prohibiting each of them from denigrating the mother, Mr G and the mother’s family to or in the presence or hearing of the children and will remove the children from any person who is doing so.
37.By 13 April 2024, the Independent Children’s Lawyer is to meet with the children to explain the effect of these Orders to them.
38.By 6 April 2024, the father is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $4,970.05.
39.By 6 April 2024, the paternal grandfather is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $748.79;
40.By 6 April 2024, the paternal grandmother is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $748.79;
41.By 6 April 2024, the maternal grandmother is to make a contribution towards the costs of the Independent Children’s Lawyer fixed in the sum of $748.79;
42.All outstanding applications are dismissed.
THE COURT NOTES THAT:
A.The father currently lives with the paternal grandmother, whose home is geographically distant from the paternal grandfather, but within closer proximity to the mother’s home.
B.No orders were made about the children spending time or communicating with the paternal grandfather because the Court was satisfied that given their joint application, the paternal grandparents have the capacity to come to their own informal arrangement that does not interfere with any specified time or communication the children may be spend or have with the father and the mother.
C.No orders were made about the children spending time or communicating with the maternal grandmother because the Court was satisfied that given their various applications, the mother and the maternal grandmother have the capacity to come to their own informal arrangement during the time that the children spend with the mother.
D.It is anticipated that the paternal grandfather will assist with the arrangements and care for the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Vega & Drake has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION
Three vulnerable children have been primarily living with their mum in recent years. The father and his parents want the children to be removed from the mother’s care. The mother and her mother say the children should either remain with the mother or move to the maternal grandmother’s home. Both parents pose risks to the children either from exposure to family violence and/or sexual abuse and/or neglect. Where will the children be safe?
These Part VII[1] proceedings were commenced by the Applicant, Mr Vega (‘the father’). There were three respondents, namely –
(a)The first respondent, Ms Drake (‘the mother’);
(b)The second respondents, Ms Allison (‘the paternal grandmother’) and Mr B Vega (‘the paternal grandfather’) and collectively described as ‘the paternal grandparents’; and
(c)The third respondent, Ms Donaldson (‘the maternal grandmother’).
[1] Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth)
The subject children are –
(a)X born in 2016;
(b)Y born in 2018; and
(c)Z born in 2019;
collectively described as ‘the children’.
The children were independently represented by Neisha Shepherd (‘the ICL’).
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and, where appropriate, there will be an avoidance of the use of gendered pronouns.
PRECIS
After about four (4) years together, in mid-2019 the parents separated on a final basis, at which time the mother moved into the home of the maternal grandmother and maternal step‑grandfather.
In April 2020, the father commenced these proceedings because the mother refused to discuss the entry of the father’s name onto Z’s birth certificate and the breakdown of the children’s previous living arrangements when the father was charged with breaching the existing family violence order protecting the mother[2] (‘the 2019 AVO’).
[2] See annexure ‘B’ to the father’s trial affidavit which for all future references shall be describe as ‘Mr Vega’ with paragraphs in square brackets and annexures identified alpha/numerically as the case may be.
The parties’ proposals changed during the course of the trial but in a broad-brush way, the ICL, the father and the paternal grandparents all agreed that –
·the children should be removed from the mother’s care;
·the paternal grandparents should have equal shared parental responsibility for the children;
·the children should live with the paternal grandmother;
·the children should spend regular time with their parents provided that various injunctions were imposed on various persons to ensure that the children remained safe;
·Z’s name be changed to reflect the same surname as her brothers;
·the father should attend a program operated by C Family Services at City F; AND
·the mother should attend parenting courses.
The mother’s primary proposal was for –
·the mother to have sole parental responsibility for the children;
·the children to live with her and spend time with the paternal grandmother;
·the children to spend time with the father (initially supervised by the paternal grandmother) and with any overnight time to occur in the paternal grandmother’s home.
The mother had alternative proposals as well.
The maternal grandmother proposed that –
·the maternal grandmother and the mother have equal shared parental responsibility for the children;
·the children live with the maternal grandmother if the Court determines that the children cannot live with the mother;
·the children spend time with the father supervised by the paternal grandmother;
The main issues in dispute were what risks of harm the children were exposed to and whether those risks could be ameliorated by either the amount of time the children spent with a person/s and/or injunctive relief. In the mother’s household the significant risks could be summarised as pertaining to the risk of exposure to sexual abuse as well as actual and ongoing exposure to abuse (serious neglect)[3]. In the father’s household the significant risks were related to the children being potentially exposed to family violence including not only physical and sexual violence but also coercive and controlling behaviours.[4]
[3] See paragraphs (b) and (d) of the definition of “abuse” at s 4.
[4] See s 4AB.
So concerned was I about the evidence of risk, that part-way through the trial, I invited the parties (including the ICL) to reflect on whether there were other options available to the Court other than the parents, failing which I may have to consider requesting the urgent intervention of the relevant child welfare authority (being the Department of Communities and Justice (‘DCJ’)).
By the start of day four of the trial, there was consensus for the joinder of the paternal grandparents and the maternal grandmother to the proceedings[5]. The inclusion of these parties meant there was alternate relief available to the Court to at least ameliorate the risk of harm to the children, noting that it is not for the Court to find a solution which eradicates the chance of serious harm. [6] Instead, the Court must balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy parent-child relationship not being permitted to flourish.[7]
[5] See s 65C.
[6] See Napier & Hepburn [2006] FamCA 1316
[7] See Napier & Hepburn [2006] FamCA 1316
For the reasons that follow, I have largely adopted the joint position of the father, the paternal grandparents and the ICL (with some changes to reflect what I heard during closing submissions) which will mean in summary that –
(a)The children will live with the paternal grandmother;
(b)The paternal grandparents will exercise equal shared parental responsibility;
(c)The children will spend specified time with each parent, albeit the father’s time will initially be subject to supervision and there will be injunctive orders made to protect the children from the risks of harm posed by each of their parents and/or the mother’s partner;
(d)Z’s name will be changed to Z Vega; and
(e)Within one year the costs of the ICL are to be paid as follows –
(i)$4,970.05 by the father;
(ii)$748.79 by the paternal grandfather;
(iii)$748.79 by the paternal grandmother; and
(iv)$748.79 by the maternal grandmother.
ISSUES
There is a legislative pathway that I have to follow when exercising my discretion pursuant to Part VII. I can make a parenting order provided I think it is proper[8] but subject to a consideration of the presumption of equal shared parental responsibility[9] and the objects and principles of Part VII[10]. The High Court observed that the focus of the objects was on “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”.[11]
[8] Section 65D(1).
[9] Section 61DA.
[10] Section 60B.
[11] See Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554.
I have read all the evidence relied upon in the proceedings but do not propose to repeat it here. As the High Court reminds me in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
62….A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
Before exploring the issues in dispute, it is important to record that it was uncontroversial that the children have and will benefit from a meaningful relationship with their parents provided it is safe to do so.[12] In addition, it was uncontroversial that to varying degrees (based on their stage of development and/or exposure to the relevant person/s), the children have secure relationships with their half-sibling K who is now about five (5) months old and K’s father, Mr G as well as the paternal and maternal grandparents.[13] There was no persuasive evidence to suggest that any of the grandparents would be unable to promote a meaningful relationship between the children and their parents.
[12] See s 60CC(2) & s 60CC(2A).
[13] See s 60CC(3)(b).
Are the children at unacceptable risk of harm?
The mother gave evidence about the family violence perpetrated by the father during and after their relationship ended in May 2019. It was common ground that –
(a)when the parties commenced their relationship the mother was 16 years old and the father was about 23 years of age;
(b)the mother does not have a valid licence which enables her to drive a vehicle on her own;
(c)the mother’s unchallenged evidence was that she sometimes takes a while to process what people are saying in order to understand them and that during her formative years she was diagnosed with a learning difficulty;
(d)when Mr G was a teenager he touched a relative’s genitals and received weekly counselling for about a year to address his actions - all auspiced through the Victorian child welfare authority (of which he was a subject child);
(e)there was no further evidence to suggest that Mr G has re-offended albeit it appeared that his engagement with counselling ended not because his counsellor considered it appropriate to do so, but because he moved inter-state and away from the relevant child welfare authority.
During the course of the trial, the mother’s traits (as described above) were self-evident, causing me to remark on a number of occasions about the mother’s vulnerability and fragility.
Despite the expiration of the 2019 ADVO in late 2020 and her ongoing allegations and concerns about the father’s behaviour and its impacts upon her, in late 2021, the mother agreed to her and the children living in the maternal grandmother’s household (where the father also lived) for about four (4) days. This decision was on the back of rising conflict between her and the maternal grandparents which, from her oral evidence, could be summarised as the mother being unable to properly communicate with her parents (particularly her mother) and the mother being frustrated at feeling like she was not being treated as an adult. There was a critical incident which involved the maternal grandfather, but in submissions the event did not loom large and no findings could be made by me about any harm that the children may have been exposed to or risks moving forward.
On 28 November 2022, interlocutory orders were made (‘the 2022 interlocutory orders’) which (in part) provided for the children to spend professionally supervised time with the father and an injunction prohibiting the father from making contact with the mother about the “spends time” arrangements unless through his solicitor.
Despite the protection of the 2022 interlocutory orders and her ongoing allegations and concerns about the father’s behaviour and its impacts upon her, weeks later, the mother agreed to the father spending informal time with the children during the 2022 summer school holidays including X staying overnight with the father (who remained living in the paternal grandmother’s home). It is worth noting that this is not the first instance where the mother has acted in a way that was non-compliant with either a parenting order or the terms of a family violence order meant to protect her (and by default the children).
During the relationship and/or post-dating it, the mother says that the father’s behaviours included –
(a)The father having non-consensual sexual activity with her during the relationship through the use of physical force and psychological/emotional pressure. Examples of this activity included the mother falling pregnant with Z (which she says caused her to not specify the father’s name on the child’s birth certificate so as not to be reminded of him) and when the mother was staying at the paternal grandmother’s home (where the father also lived) for about four days in late 2021;
(b)The father denigrating the mother on a regular basis by calling her names including “fat bitch” and “slut”;
(c)The father monitoring her movements (via a phone tracker app) and engaging in behaviours aimed at isolating her from her family and community (removing her access to house keys and locking her in the house or refusing to drive the mother to various locations);
(d)The father withholding X on occasions which the mother alleges occurred against her wishes.
(e)The father slapping her;
(f)The father throwing a gaming console, causing a hole in the wall;
(g)The father having a history of breaching the 2019 ADVO from mid-2019 to early 2020.
Other allegations were made by the maternal grandparents.
In the main, the father denied the allegations other than to concede that on occasion, the parents would have “heated arguments” which would deteriorate into name calling. The father admitted to calling the maternal grandmother a “fat pig”. The father denied that there was a power imbalance between him and the mother, despite how young the mother was when they first entered into a relationship (as opposed to him) and her history of learning difficulties[14] and slower cognitive processing.
[14] See exhibit ‘M29’
Notably in late 2021 and early 2023, the father was/is the defendant in other family violence proceeding with Ms L identified as the person in need of protection.[15] The circumstances leading to the institution of the December 2021 proceedings (‘the 2021 ADVO’) were that it was alleged that the father had engaged in non-consensual sex with Ms L which had led to the birth of a child. These events appear to have occurred in late 2021 after which a provisional family violence order was issued in late 2021[16]. The father denied the non-consensual nature of their sexual activity and denied that he was the father of the child. What happened to the 2021 ADVO is unclear. Then, after the birth of the child, and following an altercation involving the father at the home of Ms L, it appears that fresh family violence proceedings were instituted (‘the 2023 ADVO’) which were returnable before the Local Court of NSW at City F in early 2023. In cross-examination the father said that he intends to defend those proceedings. Ms L did not give evidence.
[15] Exhibits ‘ICL2’, ‘M15’ & ‘M18’
[16] Exhibit ‘M15’
The parents’ evidence was in conflict. What was not in conflict, and of significant concern to me, was that nowhere in the father’s written evidence did he speak about his involvement with the Police with regards to the breaches of the 2019 ADVO, the 2021 ADVO or the 2023 ADVO. Similarly his parents’ affidavits were silent too, although it became apparent during cross-examination that they had awareness of the issues involving Ms L.
The father’s evidence was entirely unsatisfactory, particularly when considered in light of the mother’s obvious vulnerabilities and the power imbalance that I am satisfied has existed ever since the parents met and continues on to this day. At one point, and despite acknowledging that he has anger management issues (but not - so he says - to the point of violence) and accepting the breaches of the 2019 ADVO, the father denied perpetrating physical or emotional violence on the mother.
In part, this evidence is irreconcilable with various statements of facts and other police records that were exhibited, including an event that occurred in 2020 when the father contravened the 2019 ADVO by approaching the mother after being tipped off by a paternal family member and then holding Z for a short while, followed by him continuously asking the mother to stop calling the police on him and having him arrested and then wanting to talk about the “custody” of the children moving forward. There was a video recording of at least part of the discussion from which the police observed that it is clear that Ms Drake is upset and distressed. The father’s lack of disclosure and/or insight was damning and I am satisfied that the evidence demonstrates that the father has perpetrated family violence against the mother and poses a material possibility of risk[17] to the children arising from future exposure to family violence. This is because of the ongoing coercive control he has over the mother (reflective in part on the power imbalance between them) and also because his failure to disclose events leading to at least two more family violence orders between him and someone he has been sexually involved with, leave open a finding that there is a material risk of him not only engaging in adverse behaviours with intimate partners in the future but being incapable of addressing his own failings.
[17] See Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’) at [6], [7], [46]-[51] and [81] and Eastley & Eastley [2022] FedCFamC1A 101 (‘Eastley’) at [45].
Insofar as the adverse allegations of a sexual nature about the father, having carefully considered the competing evidence, I was unable to make any findings.
With the benefit of a certificate[18] Mr G spoke frankly about his abusive conduct (when he was about 14 or 15 years old) towards his relative (who was about 4 years old at the time) and which occurred almost 10 years ago. In summary, the father said that he knew what he had done was wrong, and that through the counselling, he had learnt a lot from it. Mr G’s affidavit discloses that he is now an allied health worker and it would appear that his past abusive conduct has not limited his capacity for employment in that sector. Ms M (‘the family report writer’) was engaged by the parties to prepare family reports and give evidence in the proceedings. The family report writer expressed reticence in giving evidence about the risk posed by Mr G given she had limited information about the circumstances, and seen through that significant limitation, what evidence she did give was rather generic and of little assistance to me. Having said that, and given Mr G’s evidence (which showed far more insight than the father’s evidence as referred to earlier), I am satisfied that the evidence demonstrates that Mr G poses a material possibility of risk[19] to the children arising from potential sexual abuse.
[18] See s 128 of the Evidence Act 1995 (Cth)
[19] See Eastley at [45].
The mother’s capacity to act protectively of the children from persons who pose risks to them is also of significant concern to the Court. Given the lack of any evidence of actual harm being caused to the children to-date by either Mr G or the father (and leaving aside the complete inappropriateness of having sex in the same bed as children), I am unable to make a finding that she poses an unacceptable risk of harm because of her propensity to expose the children to either –
(a)the father despite orders of the Court to the contrary; and/or
(b)Mr G.
Nonetheless the mother’s past inability to comply with orders meant to protect her and the children is of concern to this Court moving forward in circumstances where she asks me to accept that she will comply with orders about properly exercising sole parental responsibility, the time the children spend with the father and various injunctive orders meant to protect her and the children.
The concept of “serious neglect”[20] was explored both in cross-examination and submissions. As observed by the Full Court, a finding of neglect should be limited to circumstances where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child.[21] I am satisfied that given her knowledge of the children’s circumstances combined with her specialised knowledge based on her training, study or experience[22], I should give significant weight to the family report writer’s evidence that included –
(a)the children having been subjected to “chronic neglect”;
(b)the children’s exposure to neglect would meet the threshold set by the DCJ; and
(c)the mother’s failure to ensure consistent attendance at school was suggestive of the mother being unable to cope with the care of one, some, or all of the children at the same time leading to, for example, an inability to set boundaries for the children (like getting them up in time for the morning routine including getting them fed and off to school) or in other words “ready to learn” and as a result, the children experiencing potential deficits in their educational outcomes, the development of their socialisation skills, and their integration into the classroom (due to interrupting the class when they arrive late).
[20] See paragraph (d) of the definition of “abuse” s 4.
[21] Slater & Light [2011] FamCAFC 1 (‘Slater & Light’) at [37] where the Full Court said that “neglect” will have a similar meaning to its use in State and Territory child protection legislation.
[22] See Dasreef Pty Limited v Hawchar [2011] HCA 21
Because of the findings set out below (which is not an exhaustive list), and regardless of any very recent actions on the part of the mother, I am satisfied that the evidence demonstrates that the mother poses a material possibility of risk[23] to the children as to abuse (serious neglect) –
[23] See Eastley at [45].
(a)Despite recommendations contained within one or both of the reports prepared by the family report writer[24], as at the giving of her oral evidence the mother had failed to ensure that –
[24] See exhibits ‘A’ and ‘B’
(i)the children attended upon a paediatrician;
(ii)X and Y were re-engaged with a speech therapist and an occupational therapist;
(iii)X and Y had a dental review;
(iv)Z was placed in child care;
(b)Despite referrals from their general physician, the mother was unable to secure a paediatrician for X and Y;
(c)Despite a recommendation from X’s school created in early 2022, the mother did not ensure that X was reviewed by a paediatrician in regards to his “inattentiveness and possible medical options for management”[25];
(d)Z has had to undergo a surgical procedure (under anaesthetic) whilst in the mother’s primary care;
(e)X had chronic (partial or full) absences from primary school in 2022 for various reasons specified by the school as “unjustified”, “leave” or “sick”[26] which upon hearing the mother’s evidence did not satisfy me that these were all necessarily warranted.
[25] See exhibit ‘F11’
[26] See exhibit ‘F15’
It was common ground that following the first tranche of the trial, the mother has taken steps to remedy some of the children’s deficits noting that in my view, it took me making orders to ensure that these failures started to be remedied and was not at all driven by the mother’s insight into the children’s needs.
Moving forward, I am not satisfied that the mother can sustain any newly found momentum because in my view, her explanations for past failures left me with the impression that she has been struggling for years to manage the challenging behaviours and developmental difficulties of at least X and possibly Y; whilst ensuring that the needs of Z and more recently, K are met. In that regard, K is in a special category, not only because he is a baby with completely different developmental needs to his siblings; but overlaying that reality is his various diagnoses which require multiple appointments with medical and allied health treators not only in close proximity to the mother’s home but also further afield in City N. By all accounts, the sense I got was that up to the trial, K (and the mother) had spent about half of his young life in a hospital in City N, meaning that the mother had to leave the children in the care of others for the majority of the time or have one or more of them travel down to see her. These same persons, are the ones that the mother says I should find are capable of ameliorating the risks in her household including providing her transport to various appointments. The evidence of failings in that regard have already been set out and so given they all shared the same home during some if not all of the relevant times, the risks posed by the mother are not ameliorated by their presence/support.
For completeness sake, lest I have missed that a party did submit otherwise, insofar as the paternal grandmother and the maternal grandmother are concerned, the evidence did not reach a level where I could comfortably make a finding that either of them posed an unacceptable risk of harm to the children. This is because –
(a)Whilst it could be fairly submitted that the paternal grandmother appeared content to keep her “rose-coloured glasses” on when it came to her son’s deficits (including her knowledge of the more recent allegations about Ms L), I found her to be a stoic person who is used to operating in the world of “mandatory reporters” by virtue of her occupation in the early childhood sector. It was her lived experience in this world that caused her to say that she would need “proof” before she took steps to action complaints against her son. Now, having sat through most of the trial and hearing of some of the terrible things her son has done to the mother (arising at the very least out of his breaches of the 2019 ADVO) and how that has impacted on the mother and the risks he poses to the children, I am satisfied that she is now armed with sufficient information to enable her to act protectively of the children and not put her son’s interests ahead of her own. I know she is largely untested but that is through no fault of her own and nonetheless the mother and the maternal grandmother still see her as an appropriate supervisor;
(b)Whilst it is true enough that the children lived in the maternal grandmother’s home for a significant period of time during which one or more them were exposed to serious neglect, any actions she did or did not take were not the reason for their exposure – that falls squarely at the feet of the mother. This finding however does not diminish my concerns about her failure to act effectively in the past to support the children as being an indicator of what may happen in the future.
In short the mother, the father and Mr G all pose unacceptable risks of harm to the children. Some but not all of these risks can be sufficiently managed or ameliorated[27] through injunctive orders, a topic I will return to later.
[27] See Blinko & Blinko [2015] FamCAFC 146 at [83[ referring to Russell & Close [1993] FamCA 62
What are the views, needs and characteristics of the children?
X is seven (7) years old, Y is five (5) years old and Z is three (3) years of age.
X has a diagnosis of autism spectrum disorder and has experienced some speech issues and attachment instability and attachment disruption (due to the somewhat chaotic living circumstances he experienced up until the institution of these proceedings). It was undisputed that X has had a longstanding need for paediatric review and in more recent times has had a need for engagement (or re-engagement) with providers of dental treatment, speech therapy and occupational therapy. X is now in grade 1.
Y has no formal diagnosis but similar to his brother has experienced speech issues and attachment instability and attachment disruption. Both boys have at least historically had difficult behavioural issues which have caused concern and difficulties for the mother. It was undisputed that Y requires paediatric assessment and in more recent times a need for engagement (or re-engagement) with providers of dental treatment, speech therapy and/or occupational therapy.
Z has no formal diagnosis. The family report writer has suggested she too requires a paediatric assessment and ongoing reviews of her medical condition.
Only X and Y attend formal schooling but the family report writer recommended that Z consistently attend good quality early childhood education.
I have already made adverse findings about the mother’s capacity to facilitate a proper basis for the children’s education and to meet their medical and allied health needs.
Given their ages and developmental stages, any of their views or expressions (reported or recorded) will be given limited weight by me, save for the previous findings I have made about the nature of their relationships with their immediate and extended family members. It was common ground that the children have strong attachments to their baby brother K which I have taken into consideration when making a decision about with whom they live and how much time they spend and communication they have with other persons.
What are the parenting capacities of the parties and what level of commitment have the parents made towards maintaining the children?
The father has never paid child support and the mother says that she has not sought a family violence exemption from making such an application. Either the mother is completely ignorant of the children’s needs for any additional financial support they could have received from the father or this is another example of her submission to the father arising from the power imbalance that has been there ever since, as a 16 year old, she entered a romantic relationship with him (as a 23 year old). Either way the children have lost the benefit of additional financial support that could have been supplied by the father in circumstances where the mother remains on Commonwealth benefits.
There is no doubt that both parents love their children but their ability to meet the children’s emotional and intellectual needs is impaired, firstly because of findings I have already made against the mother including at least X’s poor attendance at formal education last year and secondly because the father has, on more than one occasion, unilaterally separated the siblings without any apparent regard for the emotional impacts on the children in doing so.
It was of some comfort to know that the father consented to an order being made for him to participate in the D Program and to be subject to professionally supervised time to monitor his developing skills in the company of the children.
I also note that despite orders of this Court, the mother could not get the children to one of the pre-arranged supervised visits between them and the father during the intervening period between the first part of the trial and the last day. The outcome for the children was consistent with what they have experienced before, insofar as they have missed out – on this occasion it was the emotional benefit they would have received from seeing their dad. The answers given by the mother when asked “why?” varied, and frankly were at times implausible and/or inconsistent with her own case - that is that she is able to manage the competing demands in her household to prioritise the needs of the children and/or can rely on Mr G or her mother for support to do so.
The other issue impinging on the mother’s capacity to meet the needs of the children is the management of her own mental health issues. The mother has a longstanding diagnosis for attention deficit hyperactivity disorder (‘ADHD’) and intellectual disability[28]. The mother says that she is required to take medication for anxiety, although for medical reasons she stopped taking this medication when she fell pregnant with K which she acknowledged had adverse impacts for her. In early 2020, a psychologist to whom she was referred in 2019, wrote to the mother’s doctor to record that despite numerous attempts at engagement, the mother had not contacted the psychologist’s office and so the referral was marked as ‘inactive’.[29] There was no satisfactory explanation for her failure to attend upon the psychologist.
[28] Exhibit ‘M29’
[29] Exhibit ‘F5’
In her first trial affidavit, the mother said that she sometimes struggles with remembering dates and appointments but now (as at early 2023) she writes things down to stop her forgetting.
In summary, the mother’s evidence was that at times, she has put her needs to one side in order to try and address the needs of the children including the pressing needs of K (who now has a medical device inserted, which requires ongoing monitoring by medical staff and has various scheduled appointments with medical and allied health treators to accommodate his complex needs). My concern is that while ever the mother perceives she has to put the management of her issues to one side, there is a significant risk of her (potentially) unmanaged memory and cognitive deficits impairing the decisions she makes about the children, such as getting flustered or distracted by something unexpected occurring and then forgetting appointments, being unable to arrange for transport to appointments and/or being unable to get the children “ready to learn”. Whether this is what actually happened in early 2023 is unclear to me but either way, the children missed out on spending time with their father.
Having considered the evidence I am satisfied that there will benefits to the mother and the children if she was able to participate in some parenting programs moving forward, but I have to say that I have some doubts about her capacity to practically complete these programs in the short to medium term given her past difficulties and current circumstances.
Insofar as the maternal grandmother is concerned, in her affidavit and in her evidence, she was clear to say that she did not notice X spending unusual amounts of time out of school and seemingly, given the absence of any discussion of it in her affidavit, did not notice the poor condition of Z’s health.
I heard in submissions that whatever has occurred either at the instigation of the mother and/or the maternal grandmother since the start of this trial (including new affidavits and oral evidence) it is now “too little too late”. I agree.
What will be the impact of change upon the children?
Because of the disjointed way the children have been separated from one or other of their parents or have otherwise shared their time between the mother and the father up until the commencement of these proceedings, I accept the family report writer’s assessment of X and Y having experienced attachment instability and attachment disruption. Z has always lived with the mother and she has different developmental needs that require careful consideration.
I accept the mother’s submission that to move the children away from the primary care of the mother is a “last resort”. That said, if change was necessary, then the mother supported the children living with the maternal grandmother given the stronger attachment the children have with her arising from, if nothing else, the time they lived in that household prior to the mother and Mr G moving away from Town O and into City F.
The ICL, father and paternal grandparents were united in supporting a change in the children’s living arrangements. The children have spent significant time living away from their mother as she cared for K in hospital. The children have been separated from each other because of either agreements between their parents and/or unilateral decisions of the father. X has changed schools and all of them have moved towns. Z is now going to two different early childhood learning centres. There was little in the evidence to suggest that the children had not coped, although I accept that this may be quite superficial given the views of the family report writer about the deeper impacts upon the older children with regards to the formation and development of their relationships with their parents.
Weighing up the evidence, I am satisfied that the children will be distressed at moving away from their family home and away from their little brother, but that I must prioritise their safety first. If I do decide to move the children’s residence, then I am satisfied from the evidence that if the children spend regularised time and communication with the mother, any initial distress they feel will be sufficiently ameliorated. I have no doubt that the paternal grandmother will support the change in their circumstances given her evidence and her long experience from working in education.
What consideration should be given to the perpetration of family violence and what inferences should be drawn from the family violence orders?
I have already made adverse findings against the father.
However, my concerns about the perpetration of family violence by the father do not stop there, because he has also been the defendant in family violence proceedings protecting the maternal grandparents (made in late 2019) and which led to convictions including for breach ADVO.[30]
[30] FR-121
I have no hesitation in agreeing with at least the tenor of the proposed restraints against the father (as sought in the first instance by the ICL) which include him not bringing the children into contact with any intimate partner for the first 12 months of these orders.
With whom should the children live?
The two primary considerations require a consideration about whether the children will benefit from a meaningful relationship with their parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b).
The need to protect takes precedence over the benefit to the children arising from a meaningful relationship. The Act aspires to the promotion of a meaningful relationship, not an optimal one.[31] A meaningful relationship equates to one that is important, significant and valuable to the children and the focus should be on the quality of the children’s experience derived from the relationship rather than simply how much time they actually spend in the company of each parent.[32]
[31] Godfrey & Saunders [2007] FamCA 102 at [36]
[32] Mazorski & Albright [2007] FamCA 520 at [26]
It was apparent to me that even when the father has had limited time with the children, the quality of that time must have been of benefit to the children because –
(a)the various supervision reports of his time with the children reflected an overall positive experience for the children;
(b)the observations of the family report writer reflected the same outcome; and
(c)the parties agreed that the children have a meaningful relationship with him.
However, I need to protect the children from the harm posed by the father and presumably this is why the father conceded his original position and adopted the ICL’s proposal for the children to live with the paternal grandmother.
The mother also poses an unacceptable risk of harm to the children and there was insufficient evidence to enable me to find that the mother has learnt from the harm (or potential harm) she has exposed the children to so that it won’t happen again. For example, the mother would not countenance any sort of injunctive relief about Mr G should the children either live with her or with the maternal grandmother. Perhaps her refusal to countenance an injunction about Mr G was driven by the impracticability of such a restraint viewed through the prism of managing the needs of X and Y versus Z versus K. I simply do not know, but it may well be the case given that for example, Mr G could never be alone in a car with any of the children meaning that even if K was in need of urgent attention, the mother would either have to take K with her in the car with Mr G and the children (because she doesn’t hold the requisite licence) or some other person/s would have to take on the task such as one of the maternal grandparents who at this point in time both work outside of their home. I have already commented on her incapacity to get the children to a scheduled supervised visit with the father, notwithstanding that the first tranche of the trial had been concluded and I had to make orders about her addressing some of the urgent identified needs of the children. I simply have no persuasive evidence upon which to be satisfied that if the children lived with her, their needs would be met.
The maternal grandmother has a long association with the children, and despite them living with her in her household, their needs remained unmet. Whilst I have no doubt that the maternal grandmother loves the children and will do her best, I am not satisfied that she has the capacity to meet their needs if they lived with her and even if she does, I am concerned that they will be exposed to conflict between her and the mother, which was at least one reason why the mother moved out of the home with Mr G in more recent times and before that, into the paternal grandmother’s home for about four days.
How should parental responsibility be allocated and to whom?
When making a parenting order, I need to give consideration to the allocation of parental responsibility noting that there is a rebuttable presumption that it is in the best interests of children for parents to be afforded equal shared parental responsibility for them.[33] As a result of the father unilaterally retaining X from the mother in 2018, the mother instituted parenting proceedings which included relief for the recovery of her son and consequently interlocutory consent orders were made by the Local Court at City F which did not include any orders about parental responsibility. As a result, the parents have always retained parental responsibility for the children.[34]
[33] Section 61DA(1)
[34] Section 61B
Both parents have had the opportunity to participate in making long term decisions about the children and regrettably both parents have failed in their individual and joint attempts to do so. This could be seen as a reflection of their poor communication with each other (borne in part at least out of the family violence perpetrated by the father upon the mother) or when the children have been in her primary care, their exposure to serious neglect.
Given there is a dispute that I have to determine about Z’s name, I observe that ordinarily such a decision would fall under ‘parental responsibility’[35] and I will return to this topic shortly.
[35] See s 64B and paragraph (d) of the definition of major long-term decision at s 4
On that background, none of the parties proposed that the parents share equal parental responsibility. I have already made findings about the father engaging in family violence and the mother engaging in abuse (serious neglect) of the children.[36]
[36] Section 61DA(2)
As a result of this finding, the allocation of parental responsibility is at large and can form part of a tranche of parenting orders provided such allocation is in the best interests of the children and is otherwise proper.[37]
[37] Sections 60CA, 61D & 65D(1)
The father resiled from his original position and adopted the ICL’s proposal for the paternal grandparents to have equal shared parental responsibility with them to inform the parents of any decision they make. The mother’s proposal changed over the course of the trial and she had three alternative positions including that her primary position was that she have sole parental responsibility.
The paternal grandparents proposed that they be allocated equal shared parental responsibility. The maternal grandmother proposed that she and the mother have equal shared parental responsibility.
There was no serious criticism of the capacity of either paternal grandparent to make major long-term decisions about the children, albeit this has been untested to-date. The same cannot be said about any of the other parties.
I have already found that the mother poses an unacceptable risk of harm to the children through abuse. Given her personal vulnerabilities and that her ongoing living circumstances are unlikely to change (including for example, her reliance on others to transport her and the significant needs of K that must be met), I am satisfied that it would not be in the best interests of the children for her to have any parental responsibility[38] including if it was with the maternal grandmother and even if such allocation was supported by orders aimed at improving her capacity to make such decisions. To be frank, the mother has had more than sufficient opportunity, including with the support of services provided by the DCJ and/or in the community.
[38] Section 65DAC
The father poses an unacceptable risk of harm to the children through family violence. Because of my findings of risk and to avoid any potential conflict between him and others, I am satisfied that it would not be in the children’s best interests or otherwise proper for him to be given any responsibility about the children’s welfare.
The maternal grandmother has informally had the opportunity to assist her daughter make decisions about the children’s welfare. Indeed they all lived together for over a year during which time X had a dismal attendance at school and Z’s medical conditions. Despite what the maternal grandmother’s evidence may have been, both of these circumstances should have been patently obvious to her and yet the children continued to experience harm. Having heard the evidence, I am also of the view that there is a risk of conflict between mother and daughter with the mother expressing frustration at not being able to communicate effectively with her mother and at one point, the conflict being so high that she debunked from that home and into a home where the father lived (a desperate measure given her allegations about the family violence he perpetrated against her). For these reasons I reject the submission that the maternal grandmother should be allocated parental responsibility in any form.
The paternal grandparents are untested. It seems clear on the evidence that over the years they have had a role (albeit limited) in supporting the children where this was possible. The paternal grandmother works in education and given her occupation, it was unsurprising that no one made submissions adverse to her capacity to make sound decisions about the children. No adverse submissions were made against the paternal grandfather, or if there were, there was insufficient evidence upon which I could make an adverse finding against him. Despite the paternal grandparents being separated both domestically and geographically they have united in their submissions about them being able to co-operate and communicate with regards to decisions about the children.
Should Z’s name be changed?
Notwithstanding the parties’ various positions around the allocation of either equal or sole parental responsibility, the majority of them wanted an order about changing Z’s name. The mother’s primary proposal was for Z to have a hyphenated name “Z Drake-Vega” whereas at least the father and ICL both wanted the child’s name to become “Z Vega”.
The mother said that she had given Z her surname because of the non-consensual manner of procreation. The mother also said that she intended to take Mr G’s surname when they married (which I understand is to occur sooner rather than later). Nonetheless the mother’s primary and secondary proposal promote the inclusion of both parents’ surnames which would be a point of difference to the surnames recorded for Z’s older brothers.
I have to weigh up the best interests of all the children and in my view, a decision about Z’s name requires me to consider the impact on the three children when one of them has a different surname to the others but they share the same parents and household.
CONCLUSION
All parties agreed that the children have meaningful relationships with their parents and that the children’s safety could be maintained by a tranche of orders to address the various identified risks in each parent’s household so as to ensure the children maintained those important and valuable relationships.
I acknowledge that the paternal grandmother is untested. I have considered the mother’s submissions about whether the paternal grandmother would act protectively of the children over the interests of her son. I have weighed up the findings of unacceptable risk versus the other various considerations including the promotion of meaningful relationships and other significant familial relationships, the impacts of change upon the children, the family violence issues and the capacity issues.
On balance I am satisfied that the children should live with the paternal grandmother. This will be subject to various mandatory and prohibitory injunctions meant to ensure the children are safe (particularly given that the father currently lives in the same home as his mother). One of those injunctions will be in terms sought by the mother to ensure that if at any time the father leaves his mother’s home, the children shall remain living with the paternal grandmother.
Given the children will live with the paternal grandmother, ordinarily in circumstances where I have already rebutted the presumption of equal shared parental responsibility, she would be afforded sole parental responsibility. Here, there was an agreed position between all parties that if I preferred the ICL’s proposal, then both paternal grandparents should have equal shared parental responsibility. This makes sense, because it will take some pressure off the paternal grandmother and allow the various tasks to be shared between the two grandparents.
In my view, the children will find it much easier to relate to each other and understand the importance of their family unit if they all bear the same surname and so I will order that the paternal grandmother be able to take the necessary steps to have Z’s name changed.
When balancing the risks (which included adverse findings against both parents for their protective capacities and/or the exercise of their responsibilities as parents), I am satisfied that there is least risk to the children if the live with the paternal grandmother.
In doing so, I accept that it is not an insignificant thing for me to say to the mother - that the children cannot live with her and by association Mr G and K. However, the Court must balance a range of factors and ultimately make orders having regard to the parties and the children before it. For the reasons already identified, the only way to ensure the children’s safety moving forward is that they be removed from her home and placed with the paternal grandmother and that in doing so, I am satisfied that the children will still be able to have the benefit of meaningful relationships with both their parents which over time will continue to flourish.
The significant issues in this case were about unacceptable risk of harm and if made out, how to ameliorate them. If I was minded to change the children’s residence then other additional considerations loomed large, such as the father’s ongoing poor insight into his behaviours, the mother’s parenting capacity, the separation of the children from Mr G and K and the impact of change.
In my view the ICL’s proposal about “time” reflected a child-focused approach to managing the identified risks posed by the parents. The mother has a poor historical track record of ensuring consistent school attendance and meeting the children’s health needs. Even if this track record has or does change, her own intellectual issues and mental health needs along with her current living arrangements do not give me much hope of any potential changes being long-lived. Time between the children should be as frequent as possible but having as little impact on the children’s attendance at school and for other appointments. Four nights a fortnight and half school holidays will give the children quality time with the mother (mainly on non-school days) and ensure that they see her every week during school terms and every alternate week during school holidays. Yes there is a risk that the children arrive late or miss a school day but it is a limited risk given they are only in her home for short bursts of time rather than living with her.
As for the father, the injunctive relief embedded into the children’s time with him for the first 12 months provides sufficient protection for the children whilst ensuring that practically the time will be consistent and allow the further development of valuable and important relationships for the children with their father.
Although an order was sought about time between the children and the paternal grandfather, given the co-operative nature of the relationships between the paternal grandparents, I saw no need to make such an order, particularly when the orders will order accommodate the children spending time with the paternal grandfather in his home in the company of the father.
To ensure the paternal grandmother does not have to deal with competing requests for time as may be sought by the maternal grandmother, I will make the order as sought by the ICL for the children to spend time with the maternal grandmother as agreed between the mother and the maternal grandmother during the time the children spend with the mother.
Where changeovers cannot occur at an educational facility then they will occur at places nominated by the professional supervisor or the paternal grandmother (as may be applicable).
I will also order that the children spend half of each school holiday with the mother to ensure they get as much quality time with her, Mr G and K whilst ensuring that there is time left for them to spend with the father and to keep any injunctive restraints imposed upon the mother as practicable as possible.
Orders are made to give structure to the manner in which the children shall communicate with the mother whilst ensuring they are not exposed to parental conflict because the father may be present in the same household where the call occurs. Communication between the children and the father will be as nominated by the paternal grandmother. As explained earlier, any communication between the children and the maternal grandmother will be a matter between the mother and the maternal grandmother.
Other orders will be made to reduce the children’s exposure to parental conflict and manage the risks posed by various persons. Orders will be made for the parents to attend courses and I have given the mother extra time to do so given her current circumstances. It is my hope that by completing these courses, the parents will be able to become better parents for their children and thus improve the quality of their relationships in the future.
If an order sought was not made it is because there was insufficient evidence upon which a finding could be made that would justify an order. In particular, the father’s restraint about Mr G was an overreach of the risks posed by him and would almost certainly lead in the long‑term to a level of impracticality and artificiality for the children who would grow up wondering why it is that their step-father (and the father of K) never sleeps in the same home as they do. In short, it could never work in the long-term and brings to mind the old adage of “cracking a walnut with a sledgehammer”.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of the children.
THE APPLICABLE LAW, ANALYSIS & CONCLUSION – COSTS
The ICL brings various applications for costs which can be summarised as –
(a)The father paying one half of the costs up to the conclusion of the first three days of the trial ($4,970.05); and
(b)The paternal grandparents and the maternal grandmother paying for the costs of the fourth day of the trial ($748.79 each).
In exercising my discretion I must have regard to s 117 which sets out the Court’s jurisdiction insofar as costs are concerned including a rebuttable principle that each party should bear their own costs.
The mother is legally aided and quite properly no application was made against her.
All other parties opposed the making of a costs order on the basis of financial hardship: s 117(4)(b).
The ICL seeks to rebut the presumption that the ICL (or in other words Legal Aid NSW) should bear those costs, on the basis that I should be satisfied that the circumstances of the case make it just for various parties to pay some of the ICL’s costs.
In the exercise of this broad discretion, the Court must take into account various considerations as set out at s 117(2A).
The discretion I exercise in the making of an order (if any) in relation to the ICL’s costs (including what proportion each party must be responsible for) must be just: s 117(3)
Turning to the considerations set out within s 117(2A):
(a)The father is unemployed and his legal fees of about $80,000 are being paid by his parents.
(b)All of the grandparents work with the maternal grandmother supported by the maternal grandfather who also works.
No one consideration under s 117(2A) prevails over any other and the weight to be accorded to each of the relevant factors is at my discretion: Medlon & Medlon (No. 6 (Indemnity Costs) [2015] FamCAFC 157 at [24]. There is nothing to prevent just one consideration as set out in s 117(2A) being the sole foundation for an order for costs: PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158.
In the circumstances of this case, I am satisfied that there are justifying circumstances to rebut the presumption that each party bear their own costs: see Penfold and Penfold (1980) 144 CLR 311. This is because, taking into account all the circumstances of this case, I am satisfied that it is just for me to make a costs order against each parent because it is my expectation that notwithstanding my order, there will be no financial hardship because absent them failing to obtain an exemption from Legal Aid NSW; affording them 12 months to pay will be sufficient time for each of them to rearrange their finances and household budget to accommodate the payment.
For all of the reasons explained above, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney. Associate:
Dated: 6 April 2023
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