Watson and Watson and Ors

[2009] FMCAfam 1292

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WATSON & WATSON & ORS [2009] FMCAfam 1292

FAMILY LAW – Parenting – children living with paternal grandparents – father incarcerated but positive relationships with children – mother’s relationships poor – allegations of alienation by father and grandparents – considerations arising from findings of alienation in Family Report.

Family Law Act 1975(Cth), ss.60B, 60CA, 60CC (2),(3) & (4), 61DA, 65DAA

Applicant: MS S WATSON

First Respondents: MS J WATSON

Second Respondent: MR D WATSON

Third Respondent: MR S WATSON

File Number: CRC 138 of 2007

Judgment of: Coker FM

Hearing dates: 9 & 10 November 2009

Date of Last Submission: 10 November 2009

Delivered at: Coffs Harbour

Delivered on: 11 November 2009

REPRESENTATION

Counsel for the Applicant: Mr Priestley

Solicitors for the Applicant: GA Guthrie

Counsel for the 1^st Respondents: Mr Roser

Solicitors for the 1^st Respondents: Michael Dampney Lawyer

Counsel for the 2^nd Respondent: Mr Loomes

Solicitors for the 2^nd Respondent: McNeilly Lawyers

Counsel for the Independent Children’s Lawyer: Mr Theobald

Independent Children’s Lawyer: Legal Aid NSW

ORDERS

1. That all previous orders in relation to parenting be discharged.

2. That the Mother, MS S WATSON, and the Paternal Grandparents, MS J WATSON and MR D WATSON, have equal shared parental responsibility for the major long term decisions relating to the care, welfare and development of the children, [X] born [in] 1997 and [Y] born [in] 1997, including but not limited to:

   (a)a child’s education (both current and future);

   (b)a child’s religious and cultural upbringing;

   (c)a child’s health;

   (d)a child’s name.

3. The Mother and the Paternal Grandparents consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)They shall inform the other party about the decision to be made;

   (b)They shall consult with each other on terms that they agree;

   (c)They shall make a genuine effort to come to a joint decision.

4. Notwithstanding Order 1 herein :

   (a)The Mother shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with her; and

   (b)The Paternal Grandparents shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with them.

5. That the children live with the Paternal Grandparents.

6. That the children spend time with the Mother at all reasonable times as may be able to be agreed between the Paternal Grandparents and the Mother, and in particular:

   (a)Each week, if the Mother is able to attend, for one occasion at a sporting, social or school event at which the children are present, and attending at that event are only the Paternal Aunt and the Mother, with the Mother to be given at least 7 days notice in advance of any such event;

   (b)From 1 April 2010, the Mother have the opportunity at her discretion, on up to 3 occasions in each gazetted school term, to spend time with the children in Port Macquarie from after school Friday, or as otherwise notified and suggested by the Mother, until before school on Monday or as notified and suggested by the Mother in Port Macquarie, provided however that the Mother facilitate and support the children’s continued involvement in any sporting or social events in which they might be involved.

   (c)For the second half of the New South Wales gazetted Christmas school holiday period in 2009/2010 and in alternate years thereafter, and for the first half of the New South Wales gazetted Christmas school holiday period in 2010/2011 and in alternate years thereafter.

   (d)For the whole of the end of Terms 1, 2 and 3 New South Wales gazetted school holiday periods.

7. That all times to be spent by the Mother pursuant to Orders 6(a) and (b) be suspended during the New South Wales gazetted school holidays.

8. That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

(a)The whole of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

(b)The party having the children in their care for the Easter long weekend shall be entitled to the Easter long weekend and the end of Term 1 gazetted school holidays;

(c)The whole of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Sunday preceding the recommencement of school;

(d)The whole of the gazetted end of Term 2 or end of Term 3 school holiday period is 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Sunday preceding the recommencement of school;

(e)The first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

(f)The second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

1. That the time to be spent by the Mother with the children during the school holidays is to be facilitated by the Paternal Grandparents being responsible for arrangements for the delivery of the children to Coffs Harbour, unless otherwise agreed in writing, with the handovers to occur at McDonalds Family Restaurant [omitted], and the Mother to be responsible for the return of the children to the Paternal Grandparents at the conclusion of time to be spent by her during the gazetted school holidays at McDonalds Family Restaurant at [omitted] at Port Macquarie.

2. That the Mother be responsible for the collection of the children during other times during the gazetted school term that she might spend with the children and also for the return of the children to the Paternal Grandparents unless otherwise agreed in writing.

3. That the children have the opportunity at all reasonable times to communicate with the Mother and the Paternal Grandparents, including by email, at times that they may request, provided however that the telephone communication occurs on no more than 3 occasions each week.

4. That communication with the Father by the children only be by way of card or letter until 1 February 2010, except for Christmas Day 2009 when the children will have the opportunity to speak with the Father by telephone at which time they will also have the opportunity to speak with their Mother by telephone.

5. That in the event of the children failing to attend any time with the Mother pursuant to the terms of these orders, then that prior to

   
   

   1 November 2010, the Mother or the Independent Children’s Lawyer, until 30 April 2010, has leave upon request by letter to have this matter relisted upon 7 days notice before Federal Magistrate Coker to consider the revocation of any orders in relation with whom the children live and the substitution of other appropriate live with orders.

6. That the reports of Ms Single of July 2008 and October 2009 be made available for release to the parties.

7. That prior to the first physical visit by the children to the Father, the Independent Children’s Lawyer is requested to meet with the children and confirm that the children fully appreciate and understand the circumstances of the Father’s incarceration including the offences and sentences that have been imposed, though it will be the responsibility of the Paternal Grandparents to ensure that that is communicated to the children.

8. That the Independent Children’s Lawyer retain her appointment until 30 April 2010 and that each party, including the Mother and the Paternal Grandparents, consult with the Independent Children’s Lawyer prior to the instigation of any further litigation that might be contemplated.

9. That the Independent Children’s Lawyer meet with the children as soon as possible and explain to the children the reasons and the Orders made in relation to these proceedings and the very specific consequences that will flow by the non-compliance, including by the children, with these Orders.

10. That the Independent Children’s Lawyer has liberty to apply in any event upon 3 days notice in writing.

11. That the Independent Children’s Lawyer exercise any appropriate discretion in disclosing any parts of the judgment to the children.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

CRC 138 of 2007

MS S WATSON

Applicant

And

MS J WATSON

First Respondent

MR D WATSON

Second Respondent

MR S WATSON

Third Respondent

REASONS FOR JUDGMENT

1. I said at the conclusion of the submissions in relation to this matter that I had found this particular case to be perhaps one of the most difficult, if not the most difficult that I have ever been called upon to adjudicate.  The reasons for that will obviously become clear during the reasons that I intend to give. 

2. That there are two young children, [X], born [in] 1997 and [Y], born [in] 1997 who, as a result of circumstances entirely beyond their control, have suffered the most horrendous hurt at the hands of unfortunately all of those who had the first and primary role of ensuring that they were to be protected.  The real tragedy in relation to this matter is that this hurt has continued to this very moment, and must, for the benefit of the children, be dealt with in what some may consider at the conclusion of my reasons and the handing down of orders, to be somewhat Draconian steps.

3. However, in my assessment in relation to this matter, there is no alternative which can properly arise, other than for there to be absolute certainty in relation to these children’s lives.

4. The proceedings that are before me were commenced by application on 30 April 2007 by Ms S Watson.  I shall for convenience refer to her as the mother.  The proceedings that are before the court, however, were by no means the first foray into proceedings involving the welfare and the best interests of these children.  In fact, since about 2000 there have been difficulties, and unfortunately since the latter part of 2001, early 2002, these children have suffered what one could only consider to be intolerable hurt, as a result of the proceedings and as a result of the actions of their parents and others important to them.

5. However, on 30 April 2007 there was, what at least of the face of it would appear to be something of an epiphany on the part of the mother.  She has, on the evidence that is before the court, and whilst there are some incidental concerns expressed, there is little which would influence me to think other than that the mother has turned her life around.  In fact, and it is to the credit of the grandparents, counsel for the grandparents in final addresses indicated that that was now finally accepted by the grandparents as being a realisation that needed to be accepted.

6. In that initial application, the mother sought orders with regard to the parenting of the children.  Those orders have been the subject of variation and amendment and finally in an amended application of 10 October 2008, the mother detailed what she sought in relation to arrangements with regard to the parenting of the children. 

7. Quite simply, the mother proposed that the children should continue to live with the paternal grandparents, though she specifically noted in the amended application, only the paternal grandmother, Ms J Watson.  She sought that she and the paternal grandmother should have equal shared parental responsibility for long term decisions relating to the care of the children, and then went on to provide for specific arrangements of a very particularised nature in relation to arrangements in respect of her spending time with the children.

8. She proposed that it should be for one half of the December, January Christmas school holiday period, alternating between the first half and the second half in each year, and for the whole of the mid-term holidays from the Friday at the end of term until the Friday prior to the beginning of the next school term.

9. The mother also then set out at considerable length the other orders that she would seek in relation to the matter, addressing so many of the incidental but essential elements that must be addressed with regard to arrangements, in relation to the children.  They included arrangements with regard to collection and return, communication and exchange of information that one or other might hold in relation to the children, including, of course, health and educational information as a priority.

10. Additionally the mother sought that there should be orders with regard to non-denigration of either the mother or the grandparents and the father by any person important to the children, and more particularly to ensure that any person of significance would remove the children from the presence of anyone acting in such a manner so as to denigrate the other side of the family.

11. In fact, the matter moved on, such that on 8 July 2009 consent orders on a final basis were made.  Those consent orders, however, were only of very limited compass in that they simply discharged all previous orders and provided for the children to live with the paternal grandparents, Ms J Watson and Mr D Watson.  However, there were orders made on an interim basis by consent, which were to provide, hopefully, for the reintroduction of the children to the mother, it being the case that there had been significant periods of time where there had been little or no communication. 

12. In particular, the interim orders provided for the children to spend time with the mother at Coffs Harbour on the weekend of 15 and 16 August 2009, as well as, additionally, for the weekend of 5 and 6 September 2009. Changeover was also to occur in Coffs Harbour at a hand over centre operated by an organisation known as InterRelate. 

13. The children were also, pursuant to these orders, to have the opportunity to spend a more extended period of time with the mother from 12 to 16 October 2009.  That occasion, however, was to be facilitated, at least from the perspective of hand over, at InterRelate in Port Macquarie, and the holiday period was to be spent at holiday accommodation, which was agreed to occur at an area known as [S].

14. Suffice it to say at this stage, none of those arrangements in relation to the reintroduction of the children to the mother, and the opportunity for there to be time spent by the mother with the children, occurred.

15. The respondents to the application that has been brought by the mother are the paternal grandparents, Ms J Watson and Mr D Watson, but also the father of the children, Mr S Watson. The paternal grandparents and the father have filed responses in relation to the initiating application of the mother and, in the father’s case, an amended response has been filed. 

16. Until literally the first day of hearing of this matter, the position of the grandparents remained as was outlined in the response to an application for final orders, which was filed on 19 June 2007. I note, perhaps unnecessarily, that the position generally remained unchanged for a period of two and a half years, though one can perhaps assume at least that there was some recognition of the need for change, as a result of the consent orders which provided for re-introduction in July of 2009.

17. In any event, until it was specifically clarified by way of draft orders which were provided on the part of the paternal grandparents at the conclusion of the hearing and during addresses, the position of the paternal grandparents was quite simple.  Their proposal was for the two children to live with them, for them to have sole responsibility for long-term care and development of the children and that the children spend no time with the mother.  They also proposed that the children spend a reasonable amount of time with the father. 

18. It was, of course, unspecified as to how that might occur, and is somewhat problematic, in light of the fact that the father has, on a number of occasions, since the children have been in the care of the grandparents, been incarcerated, and at the present time is incarcerated, facing sentence, as I understand it, tomorrow, 12 November 2009, and it is anticipated by counsel obviously more experienced in the criminal jurisdiction of New South Wales than I, that there will be a significant period of incarceration to follow.

19. The father also filed a response in relation to the matter, though it was generally, one would think, a response which was more of a supportive nature to the position taken by the grandparents, than one in which there was a suggestion of the father having a more significant role in the children’s lives. 

20. In an amended response to the initiating application filed by leave on

    
    

    3 July 2009, the father proposed that the children should live with the paternal grandparents, that the paternal grandmother should have sole responsibility for the children, that the children should spend time communicating with him, and then went on to particularise how that might happen, including face-to-face time, as agreed between the father and the grandmother, and with the opportunity for liberal telephone communication. 

21. The father’s proposal in relation to the mother spending time with the children was for it to be supervised, one occasion per month for a period of two hours, at the InterRelate contact centre at Port Macquarie, and further time to be spent, as might be recommended by the officers of InterRelate contact centre, but additionally as may also be agreed between the paternal grandmother and the mother. 

22. I simply note there, that a greater recipe for disaster one cannot imagine.

23. Additionally it was conditional, the father said, that time to be spent by the mother would be upon her providing to InterRelate the results of clean drug screen urine analysis prior to spending time with the children.  Again, hypocrisy and the gross hypocrisy of that particular stance taken by the father will be something upon which I will comment significantly, later in these reasons. 

24. The father otherwise sought, that pursuant to the arrangements with regard to the grandmother having sole parental responsibility, that she would at least have an obligation to advise both the mother and the father of events relating to the children, including, it was said, specifically issues in respect of emergency medical treatment or hospitalisation and the provision of an authority to the children’s school for the parents to obtain copies of correspondence, school reports and school photo order forms.

25. As I said, the position of the grandmother and the grandfather remained significantly unchanged until the consent orders which were entered into, in July of this year, though unfortunately unable to operate, and, more particularly, as were detailed in the consent orders that were handed up during submissions on the part of the grandparents. 

26. Those suggested orders provided for a more specific arrangement and provided at least for some recognition of the relevance and significance of the mother, in the children’s lives.  There was, however, a lengthy period of time with the mother showing her good intentions in relation to this matter, before there could be an opportunity for there to be time spent by the children with the mother, of what might be considered a lengthy or unsupervised nature. 

1. The proposals were to the effect that the mother should spend time with the children on an occasion once each week for a period of six months at a sporting, social, or school event at which the children are present, and that would be facilitated by the paternal aunt.  In other words, the paternal aunt would be present during such times to be spent.  The mother’s partner, Mr M, was to not be present during such periods.

2. After the six month period, though there was no suggestion of how it might necessarily be recognised as having been successfully concluded, it was proposed that the mother should then spend time with the children for one day each alternate weekend on either a Saturday or a Sunday, from 9 am to 5 pm, as might suit the mother, but in the Port Macquarie vicinity and, again, requiring that there should be a recognition, understandably, and properly, on the part of the mother, that if she is to spend time with the children, it is to occur on occasion when the children may have other activities and, if that were the case, then, that she would facilitate such arrangements.

3. That proposal was to then continue for a further period of six months and, thereafter, again one would think upon it being acknowledged by all that such requirements had been successfully concluded, then the children were to have the opportunity to spend alternate weekends with the mother.  There was a recognition that in the 12 month period which was to pass, there should be opportunities for special occasions, such as Mother’s Day, the children’s birthday, Christmas Day, and otherwise as agreed between the parties.

4. Basically, only after the effluxion of time, and the events of the previous 12 months occurring, was there to be an occasion for there to be overnight time spent by the mother with the children. 

5. It was proposed after one year that there be alternate weekends spent at Port Macquarie between 9 am Saturday and 5 pm Sunday, and one half of gazetted school holiday periods.  The orders thereafter went on to set out some specific arrangements with regard to Christmas Day, Mother’s Day, children’s birthdays, and the like and, again, placed some significant imposition on both the mother and the paternal grandparents as to how they might enjoy their time with the children.

6. A final order was proposed that neither party should denigrate the other or allow any member of the other’s family or household to be denigrated in the presence of the children. 

7. There was, if you like, therefore, some meeting of minds, though there was a very long way to go in relation to this matter.  It is perhaps appropriate also that I should note the position of the independent children’s lawyer because, interestingly, but I think understandably, the independent children’s lawyer made recommendations which were not necessarily in accord with what either the mother, the grandparents, or the father, suggested might occur, in relation to time to be spent by the mother with the children.

8. It was suggested by the independent children’s lawyer that there should be a continuation of the children living with the paternal grandparents.  The independent children’s lawyer also suggested that there should be equal shared parental responsibility vesting in the paternal grandparents and the mother jointly.  Insofar as time to be spent by the mother with the children, however, it was submitted on the part of the independent children’s lawyer that the difficulties involved in the mother participating on a weekly, fortnightly, or other basis with the children during the school term would lead to difficulties and upheaval, which may not, then, necessarily lead to a proper and appropriate development of the relationship between the children and the mother.

9. For that reason, it was suggested that whilst the mother be invited to attend all school and sporting functions, and that that occur through the grandparents, so that the children would know that it was with the grandparents’ authorisation, the appropriate course to follow would be for more significant block periods to be spent by the mother, with the children.  It was submitted, therefore, that the appropriate course would be for there to be a period of three weeks of Christmas time, either one would think the first or second half of each Christmas school holiday period, and that thereafter there be arrangements for the entirety of all other school holiday periods to be spent with the mother, but there be no order made in relation to weekend contact.

10. The rationalisation was clear.  It was obviously to avoid the number of handovers and therefore the possibility of dispute between the mother and the grandparents or, perhaps more tragically, difficulties experienced between the mother and the children. It was also understandably suggested, that it would be that there would be less interference with the children’s activities. 

11. There were other proposals put by the independent children’s lawyer in relation to the delivery of the children, and it was important that the children would know that the grandparents were supportive and facilitating such handovers, such that it was suggested that the grandparents would be responsible for arrangements for the delivery of the children to the mother in Coffs Harbour at the commencement of any time spent by the children with the mother, and that the mother would be responsible for the return of the children to Port Macquarie, at the conclusion of time to be spent.

12. There were also what was referred to by counsel for the independent children’s lawyer as special orders that were proposed in relation to this matter.  One of those was an order which was most unusual but, again, I would think, in the circumstances, most understandable.  It related to a specific requirement that the grandparents ensure that there was a photograph of the mother placed in a prominent position in each of the children’s bedrooms, and that if there were to be some process of the children saying goodnight to their father’s photo, then, an exactly same process should follow in relation to the mother, it being important that there be reinforcement on almost, a daily basis, of the fact that both the mother and the father are significant people, in relation to the lives of the children.

13. Additionally, the more common orders were also sought as special orders with regard to the grandmother’s responsibility in ensuring that the mother was advised of schools attended, and of situations with regard to health, though, I would have thought that that was perhaps an unnecessary repetition of the obligations that arise with regard to equal shared parental responsibility. 

14. Similarly, it was sought that the normal order, if I can describe it that way, in relation to an authorisation being given to the schools to fully cooperate and to provide information to the mother should be given by the grandparents.  But, again, in light of the fact that there was a proposal for equal shared parental responsibility, it would be envisaged that there would be total cooperation and accord in relation to such arrangements. 

15. Additionally, it was sought, perhaps understandably, in the light of the evidence that fell in relation to this matter, that the father should be restricted in time to be spent by him with the children.  As I indicated before, the father is presently incarcerated, and one would anticipate that in light of the further charges which he faces, and which are to be the subject of sentence tomorrow, there will be a significant period of further incarceration.

16. It was proposed, therefore, by the independent children’s lawyer that communication between the children and the father be restricted to mail and card exchange, at least until such time as the court, but perhaps more directly at this time, the independent children’s lawyer, were satisfied that the children fully knew and appreciated the reasons that the father was in jail, as it was submitted that it could not be inferred by any means, that the children really fully appreciated the situation that existed, in relation to their father.

17. I could not agree more with, at least, that final sentiment expressed on behalf of the independent children’s lawyer, in that it is so abundantly clear that the circumstances of the father have been sugar-coated, or, as was suggested by the reporter, idolised, that there needs to be a clear recognition by these children of the most horrendous circumstances that have existed.  Idolisation of the father, when the father has behaved in the most horrendous and antisocial manner on a repeated basis is damaging to these children, and must not continue.

18. I do not, however, suggest that there should not be a relationship between the children and the father.  I appreciate the importance of that, and I appreciate and recognise, I hope, the love that these children have for their father.  To remove their father entirely from their lives would be hurtful to them, just as the removal of the mother from their lives has been as hurtful and damaging as it has obviously been, notwithstanding the failure, unfortunately, of those most appropriately required to recognise it, to recognise the hurt that has occurred.

19. I intend, hopefully not at terribly great length, to address some other issues in relation to the evidence in respect of this matter.  It is a somewhat unusual case for a number of reasons, not the least of which is that for one of those rare occasions, the parents do not fall front and centre as the parties who must be considered, in relation to these arrangements.  The paramount consideration, of course, is always the children, but it is the children’s opportunity for a meaningful relationship with both of their parents that normally and, of course, statutorily, is required to be considered.

20. Here, however, there are the paternal grandparents who have, to all intents and purposes, taken, at least in the last eight years or so, the most significant role in relation to these children.  They fall to the very forefront, in relation to ensuring that the children’s best interests and welfare are met, and to all parties’ credit, at least on this one small point, it is agreed that the children should, at this time, continue to remain in the care of the grandparents.

21. They should be commended for the physical support and the emotional nurture that they have provided for these children, at a time when, at least for some years, both the mother and the father fell so far short of what could and properly would have been expected of them that they cannot be more highly commended.  The tragedy here is that the hurt of the past continues, in my assessment, to effect so much of what is in the best interests of these children now, that the grandparents, at least, and one would think, also, other members of the paternal side of the family, are blinkered as to the benefits that can accrue to the children in having a relationship with their mother and, in fact, the harm that they cause by failing to facilitate that relationship.

22. Other witnesses, however, were also required in relation to this matter, and I intend to touch upon them briefly in relation to the proceedings.  The mother’s partner, Mr M was called.  He filed a brief affidavit on

    
    

    29 June 2009, which set out basically his involvement with his children and his observations of the mother.  He also set out at some length the circumstances of the household of the mother and of, particularly, issues with regard to discipline and control, which is so important within the household. 

23. I had the opportunity also, as it was tendered to me, of reading a report which had been prepared in other proceedings relating to Mr M and to the steps taken by him to rehabilitate himself and, associated with that, the rehabilitation of the mother, leading to Mr M now having the care of his three biological children and, in fact, as a result of the arrangements made with the Department of Child Safety in Queensland, an opportunity also to provide, at least in the short term, care for two young children who, are also family members, though not biological children, of Mr M.

24. The assessment made in relation to Mr M and by extrapolation also relating to the mother in these proceedings, was glowing. The Department of Child Safety had no concerns in relation to the household of Mr M and the mother.  It was clear that they had taken on an enormous responsibility in relation to Mr M’s three children, who were recognised as being somewhat damaged from the circumstances they had found themselves in in their mother’s household, and then also taking on the additional responsibilities in relation to the two other children who have, at least on a short term basis, been placed with them.

25. One would think, and of course there is no other basis upon which one could assess this matter, that they were seen at this time, and hopefully into the future, to be persons who could nurture, care for, and protect these children and, again, by extrapolation and inference, there could be no suggestion in my assessment that they could be considered to be in any way damaging, at least in a physical sense, to the two children the subject of these proceedings. 

26. The mother and Mr M also had within their household the responsibility for the care of the mother’s child of an earlier relationship, [Z]. [Z] also is a child with particular needs and difficulties have been assessed in relation to issues with regard to mental health.  The child is now on medication and the mother’s response and report in relation to the matter was that [Z] was a far more calm and settled child, than might previously have been the case. 

27. I was impressed with Mr M.  There may have been, as with so many members of our community, actions and behaviours in the past which cause him, perhaps, embarrassment or even a degree of humiliation.  But Mr M, like the mother, has moved forward.  They have dealt with the demons that arose in their past, I was most impressed with Mr M, and with the support that he clearly now provides for the mother in these proceedings and, of course, the more general support that is provided for those children who need assistance and nurture, at this time in their lives.

28. Additionally, I had the opportunity of reading the affidavit of Ms J. Ms J is the biological child of the paternal grandparents. Her affidavit filed in relation to this matter, understandably, was one which was supportive, particularly, of the paternal grandparents, and especially the paternal grandmother. I also, however, had the opportunity to see her in the witness box. I was impressed also with Ms J. I am comforted particularly with the information, apparently now available, which is to the effect that Ms J is willing to take a far more significant role in relation to arrangements with regard to the parenting of these children and, in particular, to facilitate arrangements with regards to [X] and [Y] passing between the grandparents’ household and the mother’s household.

29. It is noteworthy and hopefully a step in the right direction, that whilst there was an affiliation, if I can describe it that way, between Ms J and the paternal grandparents, there was also a recognition, Ms J said, and I accept it as genuine, of the importance of the mother in the children’s lives, and of the fact that whether these children might want or not want a relationship with there mother, there are certain circumstances where the adult view and the adult direction, must take priority.

30. I gained the distinct impression that Ms J would be true to her word, that she would take, perhaps, a more forceful role than the paternal grandmother, has done, in relation to such encouragement of a relationship with the mother, and even as she said, if the children were to love her a little less, she would recognise that it would be important that she take a more determined stance, in relation to ensuring that the children’s time with their mother were facilitated.

31. I take Ms J at her word in relation to this matter, and I am comforted by the more direct or robust approach that is taken by her in relation to this situation.

32. I should comment, however, that whilst I was very impressed with Ms J, there was one occasion in her oral evidence where I do not believe she was completely truthful.  She gave evidence as to what she said was the encouragement that she repeatedly heard from the paternal grandmother, in relation to the children spending time with their mother.  It may be that the paternal grandmother talked the talk, but unfortunately, and I will obviously comment further upon it, I am not satisfied to any real degree that the paternal grandmother walked the walk, in relation to a recognition of the need for there to be a relationship encouraged between these children and their mother.

33. Ms J, however, was asked whether she had heard various statements made, encouraging telephone communication, and encouraging the attendance by the children with their mother, and she said that she had done so. I accept that that occurred, however, when I asked her whether she had heard her father make similar encouraging statements to the children, she said that she had, she had heard it regularly, and she had heard it on the basis of there being a united front with the paternal grandmother and the grandfather in encouraging the children. 

34. It flew in the face of the evidence that was actually given by the paternal grandfather, which was basically to the effect that he would do all in his power to facilitate a relationship between these children and their mother, if they asked for it.  But they had not asked for it, and his clear evidence, and I accept it, was to the effect that he had not taken any outward steps in relation to encouragement. 

35. Whilst Ms J, therefore, in my view, had been less than completely frank and truthful in respect of that particular aspect of the matter, I am otherwise confident that she would be true to her word, in relation to the encouragement that she would provide to these children, in a relationship with their mother.

36. I commented before that the persons to the fore in this matter were not, as is normally the case, the mother and the father, but rather the paternal grandparents and especially the paternal grandmother, and the mother.  There was, however, some evidence from the father in relation to this matter, provided to court without objection which was an affidavit by the father’s solicitor, Ms McNealy, which annexed to it an unsworn copy of an affidavit which had been prepared on the part of the father but unfortunately, due to the obvious difficulties that sometimes arise in dealing with the various state correctional services, arrangements were not able to be made for Mr Watson, the father, to sign his affidavit.

37. However, he set out there, basically, his support for the paternal grandparents and, in particular, the paternal grandmother’s close involvement in the children’s lives.  More specifically, however, he set out in correspondence directed to, “To whom it may concern,” and which was tendered to the court without objection, again, his position in relation to this matter.  He sets out a considerable number of reasons for concerns that he has in relation to the children spending time with their mother.  I do not intend to go through, at length or at all, those particular reasons, but I do intend to make a comment in relation to the father.

38. I noted at the beginning of these reasons that the father had made mention of what he expected in relation to these children.  I made comment about the gross hypocrisy of the stance taken by the father in relation to this matter.  I cannot let that go without further comment.  This father has been the most appalling role model to these children.  In fact, in the letter that he has provided now to the court, he acknowledges that he has not been the best role model to the children.

39. It is the grossest of understatements.  He has been convicted and, in fact, will be convicted tomorrow and sentenced upon admission to a considerable number of charges relating to sexual assault and abuse of, not only the mother in previous charges, but to two other women.  The father’s behaviours in relation to violence and to his sexual assault of the women is an appalling model of any nature to be provided.  For these children to be misguided, and that is what has happened as to the behaviours of the father, is hurtful in the extreme and, as was commented upon by Ms Singlr, the report writer, is, in fact, emotional abuse of these children.

1. I have very grave concerns about these children’s interaction with their father, at least until they have a clear and complete appreciation of the man that their father really is, rather than the man that their grandparents paint him to be.  I will comment, obviously, upon the behaviours and actions, particularly of the paternal grandmother, in that regard, but the fact is here, that this man acts in the most appalling manner.  His antisocial behaviours are criminal, obviously, but they are also the most dreadful abuse of these children. 

2. For the children to not fully appreciate who their father is, and yet to demonise their mother, as they have been allowed to do, is abuse, and is an absolute disgrace.  There can be no other way to consider this matter than to say that this man is not an appropriate role model for the children and, at least until the children fully appreciate the character of their father, the behaviours of their father, and then have the opportunity to balance that against their obvious love and affection for their father, it is inappropriate that there should be communication other than of a written nature, and I intend to make orders in that regard. 

3. They will not be of a terribly long compass, but there will be a specific requirement that these children have a full appreciation of what has occurred as between their father, their mother, and other women, so that there is a proper basis upon which the balance that is to be met in relation to an appreciation of the mother and the father can at least be considered.  There is under no circumstances, at the present time, what could be considered to be a level playing field, and until there is a proper understanding by the children of such matters, they will continue to be harmed, and I will not allow that to occur.

4. I turn now to the paternal grandfather.  His affidavit in relation to this matter was not of great length.  It was clear that he was a bit player in relation to the care and supervision of the children, though I do not mean that in any disparaging way, but rather, simply, as an acknowledgement of the fact that the paternal grandmother has taken a far greater role in relation to the care and supervision of the children.  Mr Watson senior was an honest witness.  He was an honest witness to the extent of even being damaging to his own cause.  In that regard, I note particularly the cross-examination directed by Mr Priestley, counsel for the mother.  Mr Watson senior was asked whether he acknowledged that the grandmother wanted the children to have as little as possible to do with the mother.  He said, “Yes.” 

5. It was a clear appreciation of the fact that whilst there may be, as I described before, some talking of the talk, there was little walking of the walk, as Mr Watson himself appreciated that it was the grandmother’s wish that there be little time spent by the mother with the children.  He went on, however, to say it would certainly make him happy, but the grandmother could answer for herself.  He was honest, therefore, to the extent of actually being damaging in relation to his own credibility, and certainly damaging in relation to the case put forward on the part of the paternal grandparents, which was to the effect that they were doing all that they could to encourage and facilitate the relationship between the children and the mother.

6. I commented a little earlier about the fact that the paternal grandfather, in fact, indicated that he would do all that was in his power to facilitate time by the children with the mother if they asked for it, but he hadn’t done anything, really, since, he said, about 2003, when some travel was facilitated by him subsequent to that time.  It is unfortunately the case that, and I don’t meant to be disrespectful, but it will sound disrespectful, the paternal grandfather is a man of his times.  He had no appreciation of alienation, and he had no appreciation of how the actions of those significant in the lives of the children could affect the children. 

7. In fact, when he was asked about what he had done to try to overcome the difficulties, he said that he had taken them to activities.  When he was asked whether that was how he would go about not alienating the children, he said that they were happy.  The fact is that there was no appreciation of the emotional and psychological harm caused to the children by the failure to encourage and to foster a relationship with the mother. 

8. When asked specifically what “alienating” meant, his response was to say that it was the children being away from their mother.  It was a clear example of the grandfather failing to appreciate at all the consequences of what has happened over the last few years in relation to these children, and it is something that troubles me very greatly in relation to the determination of this matter. 

9. It was clear that there were suggestions of both the grandfather and the grandmother, in different ways and in different respects, alienating the children.  Tragically, the grandfather had no appreciation whatsoever of that particular aspect of the matter, because when it was put to him that Ms Single, as the report-writer, had said that there was alienating behaviour and actions, his response was simply to say, “My name is not on that tag.”  It is a total abrogation of the responsibilities that should be in place in relation to the parenting of these children, and it gives rise to the very real concerns that the mother properly expresses in relation to the need for these children to have some different direction.

10. In cross-examination about what could or should be done in relation to the best interests of the children, it was unfortunately a recurring theme that the paternal grandparents both seemed to believe to different levels and different degrees that they knew what was best for these children.  Counsel for the independent children’s lawyer specifically directed questions to the grandfather about issues in relation to the continued interaction between the children and their father, when there was a concern specifically expressed by the independent children’s lawyer and, of course, more specifically outlined by the report-writer as to the harm that could and did arise with these children having visits to their father regularly at the correctional centre. 

11. When it was put to the paternal grandfather that the reporter said that such actions were damaging, the response, again, was telling and troubling.  He simply said, “We know what’s best for the children.”  It is important that there be some appreciation of the balance in relation to this matter, and at the present time, there is no balance whatsoever in relation to any recognition of what is best for these children.  There is simply a biased and jaundiced view held by the paternal grandparents in particular, as to them  knowing what is in the best interests of the children, and them making decisions in relation to the children.  Unfortunately, it has now gotten to the stage where that cannot continue.

12. I was, as is obvious, troubled by issues in relation to the paternal grandfather’s appreciation at all of the serious concerns and consequences for these children, as a result of the behaviours of the paternal grandparents. 

13. I also had the opportunity to read the lengthy reports that have been provided in relation to this matter, and also to hear the evidence of

    
    

    Ms Toni Single, a clinical psychologist.  Ms Single has prepared two reports in relation to this matter, and they are before the court.  The first, prepared in July of 2008, was an extremely lengthy report, the second, a report dated 16 October 2009, was prepared in response to a request for a further assessment, in relation to these children. 

14. I was enormously impressed by the report and its complete scope.  There were challenges raised, understandably and appropriately, in relation to many of the findings that were made, but, as was submitted, certainly, on the part of the mother, in my assessment, this report is one which in globo, addresses so many of the concerns in relation to these children and, tragically, some 15 months later, in October of 2009, if anything, the observations that were made and the concerns that were expressed by the report-writer were still evident, if not, in fact, enhanced. 

15. In the report, Ms Single took the opportunity to comment about her discussions with both of the children, [Y] and [X].  It was noteworthy that some of those conversations were reported at length in the second report of October 2009.  At page 6 of her report, Ms Single speaks of her exchange with [Y] in relation to various issues of concern to the child and issues which arose in relation to the father.  I note that there, Ms Single reports:

    When asked about his father, [Y] became uncharacteristically evasive (despite his previous tears at the mention of his name).  He said he has phone contact with him three times a week.  He initially tried to avoid telling me where his father was living, but eventually said he was in a correctional centre.  [Y] said he was there for “doing something wrong” but denied any knowledge of this.  He denied being curious about this.  When I expressed surprise that he hadn’t inquired why his father was in gaol, [Y] shrugged and said hesitantly “I’ve asked, but I don’t want to know that much.”

    It then goes on:

    When he was questioned, “What were you told when you asked?”  he said, “They said, ‘‘cause he did stuff.’”

16. It is clear that there has been little explanation to these children, not -withstanding the untruthful evidence of the grandmother and evasive evidence of the grandmother, in relation to that particular aspect of the matter.  It was confirmed by the evidence that is reported as discussions with regard to the same situation with [X].  At page 8 of her report,

    
    

    Ms Single says the following:

    When asked whether she had contact with her father since we last met, [X] stared across the room and did not respond.  When I asked where her father now resided, she did not respond.  After a minute, I repeated the question.  After a prolonged pause, [X] said he lived in Sydney, but she did not know where.  When I said, “I understood it was in a special place,” she nodded, but denied she knew what this was.  When I put it to her that he was in gaol, [X] nodded while staring down and began to cry.  She nodded when I empathised with her that it may be difficult and embarrassing to talk about this, but she still remained guarded. 

    Clearly, these children do not have any real appreciation of the circumstances of their father, of the behaviours of their father, and it troubles me enormously that the grandmother lied, and there is no other possible explanation in relation to such a significant and telling point, in relation to this matter.

17. Under the heading, “Opinion” which starts at paragraph 10 of her report, Ms Single details a number of concerns.  She refers to this continuing difficult case of what she describes as “severe alignment/alienation of these children with the encouragement of the paternal family.”  She notes the judge’s comments and the interim orders which were made by consent in June of 2009, though I must say, I thought it was July of 2009, and that it appears to have made little difference to the situation, and the children remain implacably opposed to any contact with their mother. 

18. She then goes on to note that there appears to have been no, and she emphasises, real encouragement of the children to attend contact.  She says that this is exemplified by the grandparents’ apparent failure to communicate the new orders to the children, who were “stunned” when they heard about these three weeks later from the independent children’s lawyer.  She also commented - disparagingly, one would think, of the children’s apparent perception that the grandparents communicated that they, again emphasised, “may have to resume contact”, when orders had been consented to unequivocally to do so. 

19. There was comment made in relation to that particular aspect of the matter, and I note, understandably, that counsel for the grandparents put an alternative position in relation to why the paternal grandparents had not communicated to the children the position in relation to the orders that were made.  In that regard, however, it was clear that  the position taken in relation to the matter was one, simply, where Ms Single indicated that whilst advice might have been given, it was, in her professional assessment, inappropriate advice not to communicate such orders to the children, and that it was not the actions of a person acting in a position of “loco parentis”, and certainly not the actions of a responsible parent. There were many concerns in relation to this matter.

20. At page 12, under the heading from the previous page, “Formulation,” Ms Single makes comment about what she terms “the emotional abuse” of these children.  She says, and I must say, I have not seen such suggestions in a family report before, the following:

    Nor do I believe that any counselling or therapy of the children will shift their attitudes while ever they remain in the care of the grandparents.

    She goes on:   

    However, the children continue to suffer -

    in bold type and in capital letters -

    emotional abuse at the hands of the grandparents through their encouragement of the children’s rejection of their mother.  As well, the grandparents’ bizarre championing of the father who so violently abused their mother and possibly other women is also very damaging to the children’s moral development.  If this emotional abuse of the children continues, it will be very damaging for them in the long term, not only precluding any relationship with their mother, possibly into adulthood, but also affecting their later adult relationship formulation.

    She then goes on to say:

    There is no easy answer to this dilemma.  One could propose two extreme positions;  namely:

    (1)leaving the situation as it is to protect the children’s primary attachment to their grandparents;  this, of course, involves the continuance of the emotional abuse to which they are being currently subjected and which is so damaging to aspects of their development;  or

    (2)taking the only option which may enable the children to begin to have meaningful contact with their mother, ie, removing them from the grandparents’ care and placing them in a neutral environment (eg, short-term foster care or with the maternal grandmother if she is assessed to be a suitable short-term carer) while:

    ·    working intensively to foster the mother-child relationship through multiple contacts;  and

    ·    the mother undergoes more intensive assessment as to her suitability to take on the children’s full-time care.

    Ms Single then continues:

    While this option may facilitate contact with the mother, it of course involves huge losses and emotional stress for the children in the separation from their psychological parents (paternal grandparents).  Neither option is a good one.

    She then says, and I could not more wholeheartedly agree:

    The best option would be for the paternal grandparents to see that their negative attitude to the children’s contact with the mother and to -

    again, in bold and emphasised -

    genuinely encourage this to take place. 

    However she goes on,

    it may be worth placing the second option before the grandparents and the children as a possible outcome;  ie, that the continuation of their entrenched position runs a high risk for them all.  Both grandparents and children need to know that their continuing rejection of the mother runs the risk of loss of their grandparents as their carers.  This threat, which has not been previously spelled out to the children, may provide a reasonable and face-saving escape for them to break their entrenched position, especially if it motivates the grandparents to shift their position.

21. It is, I commented earlier, perhaps not even a sledgehammer to crack a walnut but a steamroller to crack a walnut;  but the position that has finally come before the court in relation to this matter is one in which there is no other assessment other than that, unless there is a recognition, particularly by the paternal grandmother, of the harm that is continuing to be caused to these children every minute of their lives with the grandmother, then I see no alternative but the most radical of actions. 

22. In that respect, I should note, when commenting upon Ms Single’s opinions and alternatives in relation to this matter, that there is, in my assessment, a third and perhaps more viable alternative.  That is that upon the evidence that is before the court at the moment, and there is nothing in my assessment that would suggest otherwise, these children should live with their mother.  It is not what is sought at this time and it is a radical change in relation to the lives of these children, but I will be directing that my reasons be published, and no doubt they will be brought to the attention particularly of the paternal grandmother, who, it would seem, did not necessarily have the opportunity to fully read and therefore to appreciate the comments that were made by Ms Single in her first report. 

23. I see this as a situation where there is little, at the moment, that would suggest that the mother could not and would not properly provide for these children.  My assessment in relation to this matter is that this grandmother in particular harms these children and continues to do so.  Ms Single suggests that there should be an acknowledgement or a ceding on the part of the paternal grandparents, but particularly the paternal grandmother, of the fact that she has harmed the children. 

24. I could not agree with that suggestion more. If the paternal grandmother’s behaviours continue I would think that there was no alternative but the immediate removal of these children from hers and the grandfather’s care. I have never been so strained in comments made during a judgment in relation to such proceedings, but the grandmother needs to know that she hurts these children on a daily basis with her behaviours and unless it stops and stops immediately there is no alternative for the long-term best interests of these children but for their removal.

25. No doubt those comments will cause hurt and distress to the grandmother, because she does not believe genuinely that she is hurting the children.  The unfortunate fact is that she is and in my assessment it will stop and if it does not there will be radical changes occurring immediately, in relation to the arrangements with regard to these children. 

26. I was enormously impressed and assisted by the evidence of Ms Single contained both within the two reports that were provided to the court in relation to the matter and to her lengthy oral evidence in respect of these proceedings.  I noted very many comments that were made by

    
    

    Ms Single in her oral evidence in relation to this matter and, in particular, she was questioned about the assessment that she has made with regard to the alienating behaviours of the grandparents. She was asked about the fact that the children still apparently had clear recollections of what they say was the harm caused to them within the mother’s household. 

27. There was much in the mother’s household many years ago that left an enormous amount to be desired.  But the fact is that these children, at this time, are now 12 years of age.  The events that they recall, they say, were seven or more years ago.  When asked about the fact that the children might have that recollection her response was telling.  She said words to the effect, “This happened seven years previously.  I am sure there are some elements of truth in what they recall, but I am sure there has been further denigration of the mother”.  She then went on to say, “I think it is too raw” when commenting upon the apparent memories of the children. 

28. I could not agree more.  Knowingly or unknowingly the household of the paternal grandparents and, unfortunately, I would think, in particular, the paternal grandmother, has continued to reinforce the concerns that these children express in relation to their mother.

1. The fact is that seven or eight years down the track she, like all of us, is an entirely different person and the children have not been given any opportunity and, in fact, in my assessment, have been discouraged from any opportunity of fully appreciating the changes to their mother and the benefits that that would obvious accrue from a meaningful relationship being fostered with their mother. 

2. I turn now to the two persons who are, perhaps, most significant in relation to these proceedings.  The mother is a woman who has had her demons in her life.  There has been the scourge of drugs and she acknowledges that they have formed, at least, at different occasions, part of her life for over 20 years.  She was convicted of offences when she was 17 years of age in relation to drug use and abuse.  It has been a recurring theme in her life and it has tragically affected her capacity to parent her children and to provide for the children.  She acknowledges that and recognises it, particularly in relation to the use of drugs and their effect upon her.  When being questioned in cross-examination in relation to this matter by counsel for the father she was asked whether she had used drugs from 17 years of age until only about four or five years ago in 2004.  She said that she had done so, though she had used them on and off.

3. She said that she accepted that the children had been the casualties of her selfishness.  It was an instance of self-awareness noted on the part of the mother which does her enormous credit.  What is tragic is that her change of direction in her life, at least until the last day or so, has not been recognised by the grandmother at all and in light of the comments made by the father and his continuing recidivism is a situation where the father has covered himself in no glory whatsoever and yet he seeks to pontificate as to what relationship there should be conducted between these children and their mother.

4. I was enormously impressed with the mother.  I was comforted in her oral evidence.  I was satisfied with her written evidence in relation to this matter.  She impressed me as a woman dealing with the ravages of her past actions and the consequences of her past actions.  She has turned her life around.  I have not ever seen annexed to material such a significant number of certificates and statements as to courses taken and attempts made by the mother to rectify the difficulties that she experienced for so many years of her life.  The final assessment by the Department of Child Safety in relation to the changes in the mother’s life do her enormous credit.

5. She has moved forward from the difficulties of many years and the harm that she recognises she caused these children to simply wish to change that situation to be a significant part of these children’s lives and to provide for them.  She should be given nothing but the greatest acclamation and the lack of any appreciation or recognition of those changes in the mother’s life and yet continued idolisation by the parental grandmother, in particular, of the father when he has done nothing to change the direction of his life, is one that does the grandmother the most enormous discredit.

6. The mother, in my assessment, could and would, in every respect, both physically and emotionally, provide for these children.  It would be a hectic lifestyle.  There are already in the home with she and Mr M six children, although [Z] is, perhaps, not necessarily considered a child but he is a person who has particular needs.  To have the two other children within the household would lead to simply further turbulence, one would think, on a day-to-day basis.  That would be a house in which very quickly these children would be assimilated and they would recognise that their mother has many qualities that are beneficial to them and can offer a great deal.

7. The fact that they have been given no encouragement whatsoever at this particular time to recognise that there can be benefits and there can be change in a person and the qualities that they have and the benefits that they can ensure do nothing to the credit of the grandparents and others in the grandparents’ family or camp, but it does the mother great credit.  She impressed me.  That is obvious from the comments that I have made in relation to this matter.  I was impressed even more when, at the conclusion of these proceedings, instructions were provided to her legal representatives to not press for orders in relation to the children living with her, but rather to simply again strive for the opportunity for a relationship with these children which is meaningful and beneficial.

8. The mother has done nothing except seek to improve her position, but more particularly, seek to provide a proper direction in the last few years for these children. She has been thwarted at every step in relation to the matter and for her to continue to have acted in the most appropriate of ways is, as I say, a matter of very great credit and one for which I personally commend her. 

9. I turn now to the paternal grandmother.  I find the comments to be made in relation to her some of the most difficult that I have ever been caused or required to consider.  The paternal grandmother and, I would think to a lesser extent, but certainly significantly, the paternal grandfather have stepped in to save these children’s lives. The situation that existed with their mother and their father in 2001 and 2002 and one would think also in the years earlier was a tragedy.  The children were at direct risk, both physical and emotional, and the grandparents cannot be more highly commended for the actions that they have taken in relation to protecting and providing for the needs of the children. 

10. It is a tragic facet of our current society that, unfortunately, in so many instances the grandparents are required to step in and to take a far more hands-on parental role in relation to children because of the inability or unwillingness, for whatever reason, of one or both parents to provide for their children.  In this case Mr and Mrs Watson senior have done exactly that.  The grandmother has taken the absolute and appropriate steps in relation to ensuring the children’s physical needs have been met.

11. She is to be commended in every respect and one would note from the various comments that have been made by so many, that these children have grown into very fine young children and, no doubt, will continue to develop into fine young adults, but they are flawed and they are flawed as a direct result of a lack of any appreciation on the part of the grandmother, of the tragic consequences of her direct actions upon these children. 

12. I have commented already on a number of occasions about the grandmother talking the talk.  She says that she would do what she could to foster the relationship with the mother, but the real fact is here that when push came to shove, and her evidence was, in fact, tested in relation to the matter, she had little real appreciation of the consequences of her actions upon these children.

13. I have no doubt whatsoever that these children know exactly what pleases their grandmother and what pleases their grandmother is an idolisation of their father, notwithstanding a lack of any appreciation at all of the very fatal and significant flaws that exist with their father and a total demonization of the mother.  There is a total lack of any appreciation on the part, particularly, of the paternal grandmother of the qualities of the mother, and of the change that has been occurring in the mother’s life.  It is harmful to these children.  It is alienation of the worst order.  If there was, as Ms Single had suggested, “money in the bank for the mother” in relation to a prior relationship with these children and it had been coupled with the mother pressing for orders for the children to live with her, I would have made such an order.

14. I make that clear and I cannot emphasise repeatedly or enough to the grandmother that this was a case of very finely balanced considerations and if the hurt, and there is no other way to describe it, continues in relation to these children I would, without hesitation, remove the children.  It has come to a stage where the short-term pain and there would be tragic consequences in relation to these children, needs to be balanced against the long-term benefits or gains for these children. 

15. If the mother is continued to be demonised within the grandmother’s household, if she continues to be denigrated and if there continues to be a lack of any real appreciation or proper direction in relation to the children’s lives, there is, in my assessment, no alternative but for their removal.  It would be a tragedy, but it is, as Ms Single emphasised in her second report, the only perhaps reality testing that might get through to the grandmother, and unfortunately to the children, that this nonsense and this harm ceases.  It must cease. 

16. I was troubled by much of the evidence of the grandmother.  I gained the distinct impression that whilst she had provided, as I said, to her enormous credit, the physical support and nurture for the children, there was a definite intent and determination on her part to ostracise the children from the mother.  There was no appreciation or recognition, though she said it was the case of the best interests and the welfare of the children being met, by there being a relationship with the mother.

17. Repeatedly, when finally pushed into a corner, she acknowledged that she could not or would not do more in relation to preventing the children’s destruction of cards from the mother, or encouraging appropriate and proper discussions with the children.  A 10-minute time out was nothing.  She would punish the children more significantly for a failure to attend to the washing-up than for a failure to act in an appropriate and proper manner in relation to their mother.  It did the grandmother no credit whatsoever, and unfortunately I must say that I gained the distinct impression that Mrs Watson Senior knew exactly the consequences of her actions, in relation to this matter.

18. I record here unfortunately that I did not believe her when she made statements to the effect that she thought she was doing the best for the children, she did not realise she was harming the children, she did not want to distress the children.  With respect, Mrs Watson gave me the distinct impression that she was an intelligent woman, appreciating absolutely and entirely the consequences of each statement and action taken by her.  These children were schooled by her to understand what made her happy, and therefore, though she might make the appropriate statements in relation to what was required, the children knew better.

19. They knew what to do, and whilst they are recorded by Ms Single as saying that their grandmother would give them direction as to speaking appropriately or attending with their mother, they did not do so.  There was no suggestion of any punishment.  There was no suggestion of any appropriate discipline and there was certainly no suggestion of the children being aware of any consequences other than one would think the vague recognition by the grandmother of them doing what she considered to be the right thing, in relation to this matter. 

20. Whilst the grandmother has provided that physical nurture and support, and continues to do so, there is just as clearly the most horrendous psychological harm caused to the children, not only, as I say by the demonization of the mother, but by the inappropriate idolisation of the father.  I was troubled in a multitude of ways by the actions and the behaviours of the grandmother. 

21. Her response in relation to the comments with regard to Ms Single suggesting that taking the children to the correctional centre to see their father was in her assessment inappropriate, was exactly an example again of the grandmother knowing best.  She took the children because she thought it was in their best interests.  She took the children because there was no order that stopped her from doing so.  It would seem that she had a very close understanding and appreciation of the orders of the court when it came to what she could or could not do and yet it was surprising, and I thought unbelievable, that she would suggest that,

    
    

    Bell J in earlier proceedings had said that there was to be no contact. 

22. There was no such order, and in any event, the very first of the orders that were made by consent in July of 2009, discharged all previous orders and specifically made provision for there to be time spent by the children with the mother.  The grandmother was disingenuous in the extreme.  She knew exactly what the consequences were of her actions in, I would think, almost every circumstance and every interest, and she utilised her understanding of such circumstances to her best interests as she assessed them, and to the interests of the children, again as she assessed them, but tragically in a most flawed manner.

23. I thought the most telling comment that was made by the paternal grandmother in relation to this matter came at the very end of the questions that were directed to her by the counsel for the independent children’s lawyer.  She was asked whether the children felt safe in her household.  She replied, of course that they did.  She was then asked why, the day before these proceedings were to commence in this court, she had not invited the mother, even for a short opportunity or time, to attend at [Y]’s birthday party.  She said that it was, “two hours’ drive”. 

24. It was the most vacuous of responses one could give.  There was no offer made.  There was no invitation given.  In the end, she was pushed, and she was asked whether that was any real reason not to invite the mother to the children’s party.  Her response was, “Well, we didn’t hear from the mother from 2002 to 2006.”  The grandmother continues to live in the past.  The grandmother continues to recognise in no way whatsoever the benefits to the children and the importance to the children of a relationship with their mother, no matter how flawed she may have been in the past, particularly when there is the total and unrecognisable disregard of a lack of change in the father.

25. In the end, the grandmother was pushed, and she was asked why she did not invite the mother to the children’s party.  Her response, as I say, was telling.  She simply said, “I guess I had not even thought of it.  The mother has been gone for years.”  There is no appreciation by the paternal grandmother of her own enormous failings in relation to this matter. 

26. There is no appreciation by the paternal grandmother of the harm that she has caused to these children.  It is a tragedy. It is a situation that must cease, and as I have said already, it is a situation where, if it continues, without a moment’s hesitation, I would remove the children.  I would not place them in foster care.  I would place them with their mother. 

27. The short term pain would be a tragedy for the children.  The long-term gain of a real and proper opportunity for a relationship with their mother outweighs the other consequences and the grandmother, of all people, needs to recognise that this change will occur.  The nonsense will stop, and if it does not, the consequences that she and no one else is responsible for, for these children, will be enormous.

28. I turn now, as I must, to the application of this situation and these facts to the law. In light of the lengthy recitation that has already been given in relation to the matter, I do not intend to address the matters at great length, other than where I consider that it is appropriate that it should occur. The starting point, as it always must be, is section 60CA, that the paramount consideration is the welfare of the children. As has already hopefully been obvious from the comments made in relation to this matter, these children are being hurt. They are being hurt on a daily basis in an emotional manner and it is, as was described by

    
    

    Ms Single, emotional abuse.

29. Unless there is an immediate cessation, a total change in the approach that is taken by the paternal grandparents, but particularly the paternal grandmother, in relation to this matter, there is no hope for these children not to be hurt and not to be harmed perhaps permanently as a result of these actions.  In my view, the paramount consideration being the welfare of the children, there must be a change, and if there is no change in the household of the grandparents, then there must be a change in the residence of the children.

30. I need obviously to consider those matters that arise pursuant to the provisions of section 61DA.  There is a presumption at law that it is in the children’s best interests for there to be equal shared parental responsibility vesting in the parents.  No one suggests that that should occur because the circumstance here is that the father is not in any way, shape or form, able to provide that guidance and direction in relation to the children which is so necessary.

31. What is contended, now at least on the part of the grandparents and the mother, is that there should be equalled shared parental responsibility vesting in the mother and the paternal grandparents.  The fathers says that it should vest in the grandmother, but it would seem that even the grandmother has the insight now to recognise that that is not an appropriate course to follow in relation to the matter.

32. The presumption of equal shared parental responsibility can, in certain instances, be rebutted.  The most obvious occasions that that occurs is in situations of domestic violence or family violence and quite clearly, if it even were to be contemplated, the circumstances of the father are such that he would be seen to be the most inappropriate of persons to hold any role in relation to decisions to be made with regard to these children. 

33. That was recognised on the part of the father through the submissions made by his counsel, but it was also suggested that the behaviours or actions of the mother in the past were something that would count against her having such a role now in relation to the children’s lives.  I must say unfortunately that I reject that submission absolutely.  To suggest that the behaviours that might or might not have occurred, however tragic they might have been in the past, are an absolute preclusion from any involvement in the decision-making process with regard to the children in the future, is, in my view, a failure to fully appreciate the fact that persons change and their approach, attitude and lifestyles can be totally turned around. 

34. To suggest that that would be the course would mean that the vast bulk of every child in this country would be in foster care, because none of us comes with a clean slate.  Everyone has something in the past for which they have regrets, and the father’s situation here is a clear example of the need for there to be a rebuttal. 

35. But just as clearly, it would be the most nonsensical of suggestions to raise that some action in the past, and the mother’s actions in the past have been deplorable, would be an absolute preclusion to her having a proper involvement in decisions to be made with regard to the children.  Every skerrick of evidence now before the court suggests the mother’s decisions and the mother’s recommendations in relation to the children would be nothing other than appropriate.  I have no doubt whatsoever that that would be the case.

36. Just as clearly, whilst equal shared parental responsibility would not normally vest in others significant in the children’s lives, and in that regard I am mindful, of course, of the objects and principles that are set out in section 60B of the Act, it does not mean that when one considers as a paramount consideration the welfare and the best interests of the children, that there should not be the involvement of other persons significant. One could not imagine others more significant to these children than the paternal grandparents.

1. The sharing of responsibility and decisions to be made in relation to the children between the paternal grandparents and the mother is a recognition of the importance of both in the children’s lives, and, as was emphasised by the independent children’s lawyer in relation to this matter, it is, in my assessment, an appropriate consideration, particularly so that it would be spelt out to the children that the grandparents realised the significance of the mother involved in the children’s lives and in the decision-making process with regard to the children.

2. I would again emphasise here that in the event of there being a lack of appropriate consultation and discussion, then in my view, on the evidence that I have at this time, I would be satisfied that the person who should be making the long-term decisions in relation to the children’s lives would be the mother, not the grandparents.  The fact is here that there have been such tragic consequences as a result of the actions particularly of the paternal grandmother, that unless there is that change to which I have already referred, then I have grave concerns that the paternal grandmother could or should properly be involved in decision-making.  In any event, if the difficulties to which I have refereed already are continued into the future, then I would think that in light of the fact that the very clear indication is that the children should live with the mother, then sole parental responsibility would no doubt flow and rest in her.

3. At the present time, however, the mother and the grandparents suggest that there should be equal shared parental responsibility, and I am inclined to think that in the end, that would be in the best interests of the children if all made it work.  The grandparents, in particular, need a complete change in interaction. They need now, from this very moment, to recognise the importance of the mother in the children’s lives, and if, on any level, they fail to do so, they fail these children as, unfortunately, they have failed them for a considerable number of years, certainly since April of 2007 when these proceedings commenced.

4. I intend to make an order for equal shared parental responsibility vesting in the mother and the paternal grandparents.  What flows from that particular determination is, of course, a requirement for there to be consideration of the provisions of section 65DAA.  If there is to be equal shared parental responsibility, the court must consider whether equal time could or should be able to be facilitated and, if practicable, then significant and substantial time being spent.

5. The fact is that here, the geography weighs heavily in any determination.  The paternal grandparents and the children for the last seven or eight years have lived in Port Macquarie.  The mother lives in Coffs Harbour.  As best I understand the geography, it is about two hours’ or so drive.  Equal shared parental responsibility, and therefore, equal shared time, would not be practicable.  The fact is the children have to have a settled home base for the purposes of school attendance and for involvement in sporting activities and the like.

6. The proposals, and they are sensible, at least at the current time, are for the children to continue to reside with the paternal grandparents, but to have, as best there can be, opportunities for significant and substantial time within the mother’s household.  Equal time or even significant and substantial time living within the mother’s household during the gazetted school terms would therefore be unworkable.

7. There needs, therefore, to be, if you like, a consideration of how there can be significant time spent by the mother with the children without there being that gross interference, and therefore, the impracticability spoken of in the Act in relation to the children, their education, extracurricular activities, and the like.

8. The independent children’s lawyer suggests that that can be facilitated by there being invitations to the mother to attend at all sporting functions, school activities, extracurricular activities, and the like, an absolute right for the mother to attend.  The grandparents suggest, through the proposed orders that they put forward, that there should be communication between the paternal aunt and the mother, and an opportunity for the mother to attend, on one occasion each week, a sporting, social or school event, and for her to be, obviously, involved with the children.

9. It is clear that that is one of the opportunities that could be taken in relation to the matter but it fails, I would think, to fully appreciate the enormous effect that that would have upon the time that the mother is able to devote to her other responsibilities within the household that exist between she and Mr M.

10. There are no easy answers.  Unfortunately, in a country the size of Australia, geography does play a significant part.  It is the reason, obviously, then, for one of the suggestions put on the part of the independent children’s lawyer, that there should simply be a very significant time spent during all of the school holiday periods with the mother.

11. In my view, that is an appropriate course to follow, but with some other considerations in relation to there being opportunities for the mother to spend time with the children so as to be involved, as the Act stipulates when describing what is significant and substantial time in activities not only involving, for example, the good times, such as school holidays and weekends, but also the day-to-day life of the children, including, of course, their school activities and extracurricular activities and, as defined in the Act, an involvement and a right or opportunity for the children to be involved in those events which are important within the life of the mother, as well.

12. In the end, I need, obviously, to look at those matters which are set out in section 60CC, in particular, subsections (2) and (3), but, as was emphasised in addresses to me, also those matters which are required to be considered pursuant to the provisions of section 60CC(4). Subsections (2) and (3) are, if you like, the culmination of the objects and the principles as set out in section 60B. What is clear is the primary considerations must be looked at as a starting point, but in the end, they do not necessarily outweigh other considerations that might be seen as arising pursuant to the additional considerations set out in section 60CC(3).

13. The primary considerations are twofold, the need to consider the benefit to the child or children, of course, of having a meaningful relationship with both of the child’s parents, and a need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.  The incredible irony and the tragedy in relation to this matter is that the person who is most excluded at this time from the opportunity for a meaningful relationship with the children is the person, in my assessment on the evidence before me, who is least likely to cause harm to the children.

14. The grandparents continue to cause significant emotional harm to the children with every bad word they have spoken or every intimation that is given as to the failings and inadequacies of the mother.  The role model that the father provides, when there is a prior appreciation of the man that he is, is more damaging in so many respects to the children than anything that the mother has certainly done in the last three or four years and, one would think, anything that the mother might have done in any time, including those times when she was interacting with the children many years ago.

15. The fact is that these children, whether they recognise it or not, can only benefit from having a meaningful relationship with their mother, and that must be fostered and developed.  These children’s opportunity for a relationship with their mother can only be fostered and developed by the most radical of steps being taken, and in that regard, I note, as I indicated before, the particular recommendation of the independent children’s lawyer with regard to there not being the opportunity for physical interaction between the children and their father, at least until there has been a full explanation to the children of the charges and the consequences of the actions of the father, and I would think additionally, a reintroduction to the mother with an appreciation of the real facts and the real truths that arise in relation to this matter.

16. These children need to be protected from physical or psychological harm.  As I say, the grave concern that I have in relation to this matter is the greatest risk of physical or psychological harm, and in particular, of course, psychological harm to the children, exists within the grandparent’s household, unless there is a radical change. The grandparents, if you like, are on a final warning.  The actions that have occurred over the last two and a half years, at least, since the commencement of proceedings by the mother, have harmed, and continue to harm, these children. If that harm continues, the circumstances will obviously need to be varied radically and quickly.

17. I am required also to look at those matters that arise pursuant to the provisions of section 60CC(3), the additional considerations to be looked at in relation to how a court might determine what is in a child’s best interests. The views expressed by the children are clear. They indicated to the report writer, and they indicated to the coordinator of Interrelate on 15 August 2009, the wishes they had for no relationship with the mother.

18. The views are something to be considered, but they must be considered and given relevant weight in relation to how they have come about.  They have come about from the most inappropriate guidance and directions that have been provided to them, and in my view, whilst the children express clear views, little, if any, weight could or should be given to them, because they have come as a result of inappropriate guidance and direction provided to them in relation to the encouragement of a relationship with their mother.

19. I need also, obviously, pursuant to the provisions of subsection (3)(b), to consider the nature of the relationship of the child with each of the child’s parents and of other persons, and of course, it is a significant factor here. The relationship that these children have with their grandparents is, as I said before, something for which the grandparents should, in many respects, be commended, and unfortunately in many respects, should be condemned.

20. The fact that there is nothing but a poisoned relationship at the present time between the mother and the children is as a direct result of the lack of appreciation by the grandparents of the benefits of a relationship with the mother, and whilst, therefore, that is a factor which must appropriately be looked at in relation to the matter, when one looks at the total considerations and, in particular, the paramount consideration being the welfare and the best interests of the children, the difficult, if not poisoned, relationship between the children and the mother must be balanced against the benefits that can properly flow from that relationship being encouraged and developed.

21. Significant in relation to this matter is subsection (c) which requires:

    The court to give consideration to the willingness and ability of each of the child’s parents to facilitate and encourage a close and continued relationship between the child and the other parent.

    By extrapolation, of course, there is also the obvious requirement to consider the willingness and ability of the paternal grandparents, and in particular, the paternal grandmother, to facilitate and encourage a close and continuing relationship between the children and the mother.  I have grave doubts that she can actually take the steps that are necessary in this matter.  I have real hopes, as do all, I think, even including the paternal grandmother, that the change can occur, and that these children can have a proper relationship with their mother.

22. As I have said before and continue to say, however, this is the last chance I intend to give the grandmother and others within the paternal grandparents’ household, of an opportunity to act appropriately in relation to these children.  If they fail to show the appropriate guidance and direction, or in other words a willingness to facilitate and encourage the close relationship that is so important with the mother, then the opportunity will be lost, and also the responsibilities in relation to the children will be lost.

23. Subsection (d) is a matter that weighs heavily upon my mind.  I am required obviously to give consideration to the likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or from other child or other person, including a grandparent with whom he or she has been living.  It has been emphasised by all concerned that an order which would remove these children from the home of the grandparents, in fact the only stable home that they have known for at least seven or eight years, would have the most dire consequences upon the children.  It would be a tragedy in the extreme.  It would also be, if there is no change in the attitudes within the grandparents’ household, the only chance these children have for not only a relationship with their mother, but as was have touched upon by Ms Single on a number of occasions in her report, an opportunity for these children to actually be able to develop meaningful and beneficial relationships within the wider community, and of course as they grow, within their own lives.

24. There would be a radical change for these children if they were to live with the mother.  There will be significant changes with the children spending far more significant and substantial time with their mother.  But the consequences of failing to act would be such that when one balances all of those matters, it is clear that there must be a significant change and one which must be facilitated by all involved. 

25. There is, of course, some difficulty and expense in the children spending time with the mother.  Not only is there travel that would need to be facilitated, but there would be, at least in relation to involvement during school term in some of the children’s activities, expense for the mother in being in Port Macquarie.  It is not, however, an insurmountable problem and whilst it would be a matter of concern perhaps on a day to day basis particularly within the mother’s household, it is not one that I think greatly influences the determination of these proceedings.

26. Section 60CC(3)(f) in my view should perhaps be read in conjunction with subsection (i). They require that the court have consideration of the capacity of each of the child’s parents and of other parties, including the grandparent or relative of the child, to provide for the needs of the child, including their emotional and intellectual needs, and also pursuant to subsection (i), a requirement that there be a consideration of the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents or, by extrapolation, the paternal grandparents in this case.

27. On the current evidence I have no doubt that the mother and the paternal grandparents could provide for the intellectual needs of the children.  It would be a difficulty, particularly within the household of the mother, as I commented, simply because of the numbers that are there.  But I have no doubt that with the determination that the mother would show in relation to this matter, she could meet the intellectual and developmental needs of the children, particularly with regards to their physical development.

28. Similarly, I have no doubts whatsoever as to the grandparents’ capacity to meet those needs and the runs are on the board.  They have done so for a significant period of time and no doubt will continue to do so.  The real issues here are to deal with the emotional needs of these children and, of course, to also recognise the attitude to the child and to the responsibilities of parenthood. 

29. The mother in the past has fallen far short of what was required in that regard, and there is that self awareness to which I referred previously that recognises that she has fallen short, but that she has now able to provide for the emotional needs of the children, even if the children at the present time do not recognise it.  The mother’s current attitude to the children and her attitude to the responsibilities of parenthood are clear.  She has turned her life around and again, I have commented at length about such matters. 

30. The grandparents have not.  In particular, the grandmother’s capacity to meet the emotional needs of the children is blinkered in the extreme.  She has failed to really appreciate, or if she does appreciate, has totally ignored the harmful consequences of her alienation of these children from their mother.  It stops and it stops now, because a failure to do so would be the greatest injustice that could be perpetrated upon the children.

31. Similarly, the attitudes to the children and to the responsibilities of parenting are troubling. I gained the distinct impression that the actions of the mother in the past, and they are the subject of criticism, are what the grandmother in particular hangs her hat upon now, in taking the most proprietal of stances in relation to these children.  They are not the children of the mother, they are children to be protected and only able to be protected by the paternal grandmother.  It is a very troubling attitude that is taken by the paternal grandmother.  It is a very troubling stance in relation to the responsibilities that should be taken in respect of the parenting of children.

32. Another issue which is, of course, significant in relation to this matter, and one which does weigh, if you like, to some degree at least in favour of the paternal grandmother’s household, is a consideration as required pursuant to the provisions of section 60CC(3)(g) of the maturity, sex, lifestyle and background of the children including, particularly, issues that flow from Aboriginality or Torres Strait Islander cultural issues. The father is of Aboriginal extraction. The grandparents have an appreciation of the needs to facilitate such issues, and whilst I was not overly impressed with the grandmother’s account of what steps she has taken in relation to dealing with issues of Aboriginality, it is clear that there is an appreciation and a recognition of the background of these children, the culture and traditions of their Aboriginal background and the need for that to be facilitated with the children’s lives.

33. They need to know about their background, just as clearly, however, in my assessment, the mother also appreciates that.  And if it were the case that there were to be a change facilitated in relation to this matter, I have no doubt that whilst it may be a little more difficult for the mother to take the appropriate steps in ensuring that the children have an appreciation of their culture and history, it would not be something that could not be facilitated. 

34. I am required, obviously, to address issues in relation to family violence involving the children or a member of the child’s family pursuant to the provisions of section 60CC(3)(j), and also address issues in relation to any family violence orders. As best I understand it, there are not currently in place family violence orders. But there is, and was, family violence involving a member of the child’s family. The mother was horrendously treated by the father. The incidents that occurred in the latter part of 2001 and the early part of 2002 were so disturbing as to bring tears to the eyes.

35. I read the outlines that were provided by the police in relation to this matter.  The father was found guilty of the most degrading sexual assaults of the mother.  He was found guilty of physical violence of the mother.  I noted in the record that was provided that the mother, after the father was removed, was left in the care of the hospital to be treated for certain of those injuries, including, it was referred, bruising to the whole of her body and burns to her face.  They were reflective, of course, of the evidence that was given by the mother and she was unchallenged in relation to it, of having had cigarettes stubbed on her.  There was the most horrendous violence in the household.

1. The children, if they were not present to witness it, witnessed the consequences both emotional and physical for the mother.  I have the most enduring respect for the mother and the stance that she has taken in relation to this matter in the face of the most degrading and horrendous behaviours.  What troubles me even more is the lack of any appreciation of how outrageous the behaviours of the father was and continues to be in the eyes of the paternal grandmother.  Even in the witness box, when the evidence was clear that the father intended to plead guilty to more recent charges of sexual assault, the grandmother was unaccepting.  It was the fault of the women involved and he was violent only in situations where he was pushed. 

2. It would appear that if you are, from the grandmother’s perspective, aligned with her side of the family or her camp, then there are always excuses and reasons.  But in relation to the mother there was no compassion.  There was no consideration whatsoever of the changes that had been brought about.  The violence of this man was disgusting.  The lack of appreciation or recognition, it would be seem, by either the grandmother or, to a lesser extent, but just as clearly the grandfather, are matters that give rise to real concerns in relation to what these children are being taught and the guidance and direction that is provided to them.

3. I am required, obviously, to make orders that would be least likely to lead to the institution of further proceedings. That particular consideration which falls upon me gives rise to a real concern as to the orders that I am asked to make in relation to this matter.  I say that because whilst there is now a real indication on the part of the grandmother that the disparaging actions, the denigration and the revulsion is, in some degrees or extents, encouraged in children of their mother, will stop.  I have my doubts as to whether that will occur, and therefore if I were to make orders, as generally suggested in relation to this matter by all concerned, which would lead to the children continuing to live within the grandmother’s household, and I am not certain at all that I am making orders which would be least likely to lead to the institution of further proceedings. 

4. But one lives in hope, and these children deserve nothing less than all who are significant and important in their lives putting the behaviours of the past behind them and in the past, and moving forward, ensuring that these children’s rights, and they are the only ones with the rights;  the others are all responsibilities, are met.

5. There is much that gives rise to concern in relation to this matter.  There is much that is hoped for the future, and there is much that needs to be thought upon long and hard by all, and in particular, the paternal grandparents in relation to this matter.  In the end, however, I have come to the determination of what orders should appropriately be made in relation to the matter in light of the very significant and lengthy comments that I have made with regard to the proceedings.

6. I should record here that I was enormously assisted by counsel for all involved in these proceedings.  It was a most difficult case.  It was a most unfortunate set of circumstances.  I, in particular, would express my thanks to the independent children’s lawyer for dealing, I thought, in a most appropriate way with many of the issues that arose with regard to the hurt being caused to these children.  I make that comment specifically in light of the comments that were made by the grandmother about what [Y] told her, she says, in respect of threats or intimidating behaviour on the part of the independent children’s lawyer.  I do not for one moment consider that that occurred.  If anything, it was simply one more indicator of the fact that these children knew what their grandmother wanted to hear.

7. What the children were actually told, if anything, by the independent children’s lawyer, and, I think, also, had indicated to them by

   
   

   Ms Single, was the fact that their continued disrespect, disobedience, and lack of any really appropriate behaviours and a lack of any real encouragement to behave appropriately by the grandmother could have serious consequences.  If nothing else, the reasons that I have given in relation to this matter would hopefully go some way to clearly emphasising to all concerned the real extent of the harm that has been caused and the continuing harm that will be caused unless there are changes, and instantaneous changes, in relation to these arrangements.

8. There are difficulties with regard to the redevelopment of the relationship with the mother.  I intend, as best I can, to seek to facilitate those changes, taking on board some of the benefits that I think arise from what is suggested by the paternal grandparents in the outline that has been provided by them, and also taking on board the suggestions made by the independent children’s lawyer and adopted by the mother through her counsel. 

9. I need make no further comment in relation to the disregard I take in relation to any suggestion by the father as to what might be appropriate in relation to the future parenting of these children.  If anything, the father’s actions and continued actions, as evidenced by the fact that he is to be sentenced tomorrow for further incidents of sexual assault and physical assault, clearly indicate the lack of basis upon which there could be a proper appreciation by the father of what is in the best interests of the children.

I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate:  L Nielsen

Date:  7 December 2009