Weldon and Sulter

FAMILY COURT OF AUSTRALIA

WELDON & SULTER

[2008] FamCA 459

FAMILY LAW – CHILDREN – Parenting proceedings – two boys aged 14 and 8 - maternal grandparents and father – mother deceased – older child refusing to see father – younger child with strong wishes to live with father – father’s unsettled history – grandparents attitude of differentiating between the two children and impact on younger boy – separation of the brothers – younger child to live with father and spend time with grandparents and older brother – no orders about older boy’s arrangements to spend time with father – orders to be explained to both children by being seen together by Family Consultant and independent children’s lawyer.

Family Law Act 1975 (Cth)

R and R: children’s wishes (2000) FLC 93-000

1st APPLICANT:

Mrs Weldon

2nd APPLICANT:

Mr Weldon

RESPONDENT:

Mr Sulter

INDEPENDENT CHILDREN’S LAWYER:

Heard McEwan Legal

FILE NUMBER:

WOC

372

2007

DATE DELIVERED:

20 June 2008

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

18 September 2007, 6 March, 9, 12 & 13 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Ms Carr

SOLICITOR FOR THE APPLICANTS:

Aboriginal Legal Service (NSW/ACT)

COUNSEL FOR THE RESPONDENT:

Mr Watkins

SOLICITOR FOR THE RESPONDENT:

Dribbus Kovbacevic Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McPherson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Heard McEwan Legal

Orders

The maternal grandparents and the father are to have shared parental responsibility for the children N born … April 1994 and J born … August 1999 in relation to their long term care, welfare and development to include but not be limited to issues about:-
(i)        the education of the children — current and future;
(ii)       the religion of the children;
(iii)      the health of the children;
(iv)any change to the children's living arrangements that may make it significantly more difficult for the children to spend time with any party.
The child N is to live with his maternal grandparents.
The child J is to live with his father
(i)to be implemented 10 days before the commencement of the forthcoming July school term in New South Wales;
(ii)pending the move to his father’s care in (i) hereof the time with his father is to continue according to the current interim orders.
From after the commencement of the school term in July 2008 J is to spend time with his maternal grandparents as follows:-
(i) as agreed;
(ii)during school term each alternate weekend from 5pm Friday until 5pm Sunday or such other times as are agreed, the first weekend to be the second weekend after the commencement of the school term;
(iii)during school holidays for one half of each school holiday period as agreed and failing agreement for the first half during the Easter, June/July and September/October holidays and during the Christmas period during the first half in odd numbered years and the second half in even numbered years.
The responsibility for travel between the residence of the father and the residence of the grandparents to implement these orders is to be shared equally or as otherwise agreed.
Both children are to be at liberty to telephone the other child or their father or their grandparents at all reasonable times.
The maternal grandparents and father are entitled to attend all events involving the children including but not limited to:-
(i) sporting fixtures;
(ii)extra curricular activities that allow for parental attendance or participation;
(iii)school functions and events that allow for parental attendance or participation.
The maternal grandparents and the father are to inform each other as soon as reasonably practicable of:-
(i)any medical problems or illness suffered by the children, whilst in their care.
(ii)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(iii)their residential address;
(iv)their telephone contact number;
(v)any other matter relevant to the welfare of the children.
If the parties cannot reach a joint decision about:-
(i)       a major long-term issue involving the children; or
(ii)      the interpretation of these orders; or
(iii)     the implementation or enforcement of these orders; or
they will do all things necessary to participate in family dispute resolution with a person authorised under the Family Law Act.
The maternal grandparents and the father are to refrain from making critical or derogatory remarks about each other or members of their family in the presence or within the hearing of the children and are to do all things necessary to see no other person does so.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 372 of 2007

Mrs and Mr Weldon

Applicants

And

Mr Sulter

Respondent

REASONS FOR JUDGMENT

Introduction

A decision is required about the future arrangements for two boys: N (14) born in April 1994 and J (8½) born in August 1999. Their mother passed away in November 2006 after a long illness following diagnosis of breast cancer in 2004. Against a background I shall come to shortly, their father and their maternal grandparents have different outlooks on what is best for them over the remaining years of their dependency. For some time now the children have lived with their grandparents. Under interim orders J has spent time regularly with his father and it is common ground he wants to live with his father, but N has refused to talk to him or spend time with him and he is firmly against any change to that.
Their father and grandparents tried to resolve their differences a couple of months ago in a discussion instigated by the father at the grandparents’ house, but in the end they could not all agree. Nonetheless, the discussion had the important effect of narrowing the distance which had defined their relationship from the outset and lessening the open hostility that had marked it over the many years since. Yet the positive note was short lived; it did not survive the later exchange of affidavits, which laid out the case on a raft of negative experiences and opinions, or the cross-examination intended to sheet them home. For the boys’ sake this is regrettable since it is now difficult to see how the small but important gain made in that discussion could be rekindled. Still, ultimately it is the responsibility of those around them to model appropriate adult behaviour and teach them by example how to go about dealing with differences that arise in life; what happens from here will be for them to decide.

Proceedings/orders sought

Circumstances and positions have changed since the grandparents first instituted the proceedings in January 2007 in the Local Court. The orders they seek are to be found in exhibit 1 and those now sought by the father in exhibit 3 - the detail is set out in a Schedule at the end of these Reasons. At least so far as the children’s time is concerned, it will be apparent that their grandparents propose they both remain living with them, J spend time with his father every second weekend and during half the school holidays, and the only order proposed for N is that he spend time with his father according to his wishes. Their father proposes J live with him, he spend time with his grandparents every second weekend, and both boys spend their school holiday time equally between him and their grandparents. They each propose a suite of other orders related to responsibilities to do with the children’s upbringing and no submissions were made about those matters. The focus remained on whether or not J will go to live with his father and whether or not there should be any order about N’s school holiday time, including an order that he make his own decision about time with his father.
An independent children’s lawyer was appointed some time ago and it will be apparent from the detail set out in the Schedule that the ICL proposes an outcome which mirrors the grandparents’ position.

Evidence

Apart from what each of the parties had to say there is some further brief evidence from the grandparents’ son, (the children’s uncle), and from the father’s sister. He was briefly cross-examined but she was not required. There is also evidence from a Family Consultant [the reporter] who prepared a report arising from interviews conducted last November and she gave further evidence at the hearing. Her evidence will be referred to in more detail in due course. Also, some of the documents produced from various sources under subpoena were tendered by agreement.

Current arrangements & future proposals

The grandfather (67) has worked full time for many years as a public servant. An Aboriginal man from the southern coast area, he does community work with children and he is heavily involved in local Aboriginal community work – he is a member of the … Land Council; the … Trust which has responsibility for using trust funds primarily to provide for Aboriginal children; and the Chair of the local indigenous community group. He maintains good health and a healthy lifestyle and there is every reason to see him as an influential and respected member of the community. The grandmother is also in good health and leads a healthy lifestyle. With her husband, she is involved in the local indigenous community group and she runs the domestic front of the family home at B. They have been married for 47 years. Apart from the two boys their son, the children’s uncle (33), lives with them. He works as a skilled labourer with the local council and appears to have followed his parents’ lead of community involvement.
On their case, the current arrangements for the boys would continue; that is to say, they would remain living where they are, they would continue to attend the same schools, they would maintain their friends, activities and interests, and J would continue to see his father regularly with their support as he does now.
The father (41) is an Aboriginal man from Central Australia. His parents are deceased. He and his sister, the children’s aunt, have maintained their close family relationship though they have lived some distance apart and she supports him in his present application. He is a tradesman by occupation, presently unemployed, with a chequered work history over many years, often working in his trade for relatively short periods and in remote locations [exhibit 8]. As will become apparent, he has an unsettled history of accommodation and he moved again some weeks ago to G. He was offered a rented house there and he sees G as having the advantage of being reasonably proximate to where the grandparents live – and where N will continue to live. He says he cannot live in the coastal area because of the Weldon family’s negative attitude towards him and their local influence. In the few weeks he has been in G he has applied for a job though he has not heard back and he was in the throes of investigating the prospect of a job at M and the outcome of that is not known. His income at the moment comes from unemployment benefits.
On his case, J would live with him at the house he now rents and if necessary in the future he will find other accommodation in the G area where he intends to remain; he will apply for supporting parent’s benefit which will increase his current income, although he intends to keep looking for work; J will attend a local school, either a Catholic or State school where he has already made enquiries; and if he is working out of school hours he proposes arranging before and/or after school care according to what is necessary. His earlier proposal that his sister would move and assist with the children’s care has been abandoned in light of developments in her career and her other commitments in Darwin. Obviously his proposed arrangements do not have the same concrete substance as the grandparents’ since the circumstances underpinning his are not in fact in place. As his proposals also make clear, J would spend every second weekend with his grandparents and N during school terms and both boys would spend their school holidays equally between his household and their grandparents.

History

The evidence has not been very precise or consistent about dates, but a general outline of the major developments is sufficient to give context to the decisions required.
In 1991 or thereabouts the children’s mother moved from the south coast of New South Wales to live in Alice Springs where she worked for an Aboriginal community organisation. She and the father began their relationship around 1993. What the evidence indicates of their relationship will be discussed later, but for now it can be said that on any view of it over the next 13 years it was at least problematic at times and marked by a number of separations and reconciliations. They finally separated while living in the New South Wales south coast area in early 2006.
It is said they remained living in Alice Springs - together on and off and while the father worked away at times - until 2002 although documents place them or the children in Canberra during 2000 and 2001. In any event, the two children were born while they lived in Alice Springs - N in 1994 and J in 1999 – and on both occasions their mother returned to her parents on the New South Wales south coast for their births. The grandmother says that during the years at Alice Springs their daughter stayed at times at an Aboriginal welfare worker’s home by reason of the father’s conduct towards her. It is also her evidence, unchallenged, that there were many occasions during those years when they cared for N at their daughter’s request, sometimes for months at a time; for example, in 1995 when N was around 16 months of age the grandmother went to Alice Springs and brought him back to B for some months; in 1996 she went to Queensland to help the mother with N; in 1997 they collected N from the mother in South Australia and he lived with them for several months; and there is also reference to the mother having arrived from Alice Springs with N in March 1999. After J’s birth in August of that year they stayed with her parents for about 6 months.
On moving to Canberra, probably to be closer to her family, the mother and the children lived initially for a time at a refuge before renting a home. When the father also moved there is not clear but it appears he did and their relationship continued the earlier pattern. The diagnosis of cancer came during 2004 and that was followed by a double mastectomy at the end of the year. The grandmother went to Canberra during that year to help with the care of the children. After a time the mother moved with the children back to the southern coast area. Then around November 2005 she and the father reconciled and they lived together for several months before their final separation in January 2006. The mother and the children went to a refuge for a while before moving into a rented home – there was a problem getting furniture out of storage which was in the father’s name – and then in March they went to live with her parents at B. She and the children remained living there as her illness progressed.
In May 2006 the father left to work in Western Australia and he returned in August. During his absence it is apparent [from a letter dated 8 August 2006 written by the school principal] that he made repeated attempts to establish contact with the children and their mother via the school. His persistence led to the school asking him to limit his calls to once a week and, while he remained cooperative, he did not always comply with the school’s request. The letter records J being always happy to speak to his father when he called and that his grandmother had reported him being difficult to manage at home afterwards. N refused his father’s repeated requests to speak to him. Both parents were requested to relieve the pressure on the school by some decision formalising access arrangements.
Perhaps in direct response to the letter, in August 2006 the mother instituted proceedings about the children’s arrangements in the Local Court. On 20 October she and their father consented to orders which provided for the children to live with her; J to spend time with his father every second weekend from Friday after school until 6pm Saturday, on Tuesday and Thursday after school to 8pm, and for half of the school holidays as well as certain special occasions; N to spend time with his father according to his wishes; and a number of other orders were made, including provision for liberal telephone communication.
At times during 2006, when not in Western Australia, the father stayed at a hostel in the south coast and notes from their records give some indication of his living circumstances. For example, an entry on 11 September records ‘[The father] is still applying for private rentals and is frustrated by perceived prejudice. Is looking at private rentals.’ A week later, there is this entry: ‘[The father] has reappeared on the scene after an absence of about 4 days/nights. Have spoken to [the father] about letting us know if he’s not going to back so that we don’t give bed away. States that he let guys know - staff, not guys, need to be told. [The father] states he has court cases coming up in regards to his children.’ The following week there is an entry foreshadowing a move to the Northern Territory: ‘House was taken back by other person. Children gone back to family for now. When school finishes [the father] intends moving to NT and taking children with (4 weeks) Next pay 23 November 2006.’
After the mother passed away in early November 2006 both children remained at their grandparents’ home. It was agreed that J would go into his father’s care around 21 December. It was not agreed he would not be returned and his grandparents expected him back towards the end of January to start school. However, the father says he had legal advice that the October 2006 orders were of no effect and as the children’s sole surviving parent he was able to assume their care. He took J to Brisbane where he says he intended to establish himself before taking steps to have N join them. In the meantime, on 10 January 2007 the grandparents instituted proceedings in the Local Court for parenting orders and when J was not returned as anticipated they successfully obtained a recovery order which saw police intervention and J being handed into his grandmother’s care in early March.
After he had arrived in Brisbane the father applied for government benefits, he enrolled J in school in Brisbane, and he went about trying to obtain accommodation. As it happened, during the first two weeks of February J attended school only 6 of 11 days and on one of those days he was late. Explaining his absences, the father describes J as being distraught – he kept running out of the school, he would not go in, and he wanted to stay with his father.
After J’s return to his grandparents interim orders were made which resembled in substance the terms of the consent orders of October 2006.
The father remained living in Brisbane initially and he travelled to the New South Wales south coast area to see J on weekends as the interim orders provided, but inevitably the distance and costs involved saw that arrangement break down. Around August he moved to G on the south coast where he got casual work as a tradesman. Yet while this allowed more regular time with J, the move was not without its difficulties and he then moved to Newcastle. He intended to establish himself there - he proposed at the time to have his sister join him there – but those plans also fell through and, as already noted, he recently moved to G.

The children

Touching upon N’s personality and general development in their affidavits, the grandparents report him to have ADHD which is monitored by a paediatrician regularly, they say he is very quiet in nature, he has friends, he is doing well at school where he receives extra support because of his speech difficulties and ADHD [he won a scholarship for most improved Aboriginal student in 2008], and he plays basketball at school. He likes to help his grandfather around the yard and to work with his grandfather on cars.
The reporter describes N as a ‘shy child who seemed younger than his chronological age’. She said he appeared uncomfortable most of the time but he was observed to interact happily with his brother and grandparents throughout the day. He was unequivocal about wanting to continue living with his grandparents [repeated even more strongly when she spoke to him again later in the month] and he said he wants J also to remain living there. He could not explain his reasons. In contrast to J, he did not want to have any contact with his father or his aunt on the day of the interviews. He later agreed to his aunt coming into the room where he was playing with J, though he initially ignored her. But later he interacted with her in a relaxed and comfortable way. The reporter then introduced his father to the setting, for reasons she explained. N ignored him. His father told him how much he loved him and how good it was to see him again, but N did not engage with him. The grandparents disapproved of what the reporter had done and said so. The grandmother’s remarks to N afterwards are reported in this passage:
‘When she entered the observation room after [the father] had left she appeared very concerned about [N] and asked him, "What's wrong with you [N]?" and "Are you all right?" a number of times. [N] said nothing and he did not indicate in any way that he was distressed….’
Turning to J, his grandparents describe him as outgoing, he is easily distracted, he has lots of friends, and he started playing soccer this year. They say he and N are close despite the 5 year age difference. The grandfather told the reporter J is a difficult child, describing him as having a ‘split personality’, that he has had problems at school which have led to frequent detentions, and recently he had been suspended from school. He believes the father puts words in J’s mouth and that is why his behaviour is often very difficult to manage, especially after he has spent time with his father. He said the grandmother had called the police on at least one occasion when J had been ‘out of control’ and that J had ‘screamed’ frequently since his mother died. The grandmother also expressed concern about the way J behaves after spending time with his father, describing him as often verbally abusive towards her and fighting with N. She described to the reporter an incident involving J [11]:
‘…She then went on to describe how [J] had left a gate open which had led to their elderly dog's escape from their yard and subsequent death. [The grandmother] said that [N] had blamed [J] for leaving the gate open and that [J] had laughed about what happened to the dog. She said that [J] can be very destructive and that he had damaged a computer and that he often threatens to break her possessions. She said that she finds it difficult to know what do to with [J], and is unsure whether he would be better off if he were with his father ……’ [The grandmother said later she could not recall saying that but she may have]
She also described J as a ‘loving little boy’ who enjoys the time he spends with his father and despite the difficulties she said she ‘loves having the boys’ and she is very happy to provide them with everything they need in life, adding ‘they come first with me.’
The reporter assessed J as ‘an energetic child who did not having (sic) any difficulty expressing a strong wish to live with his father’ and she said he was ‘able to identify many positive aspects of spending time with his father but less able to identify positive aspects of being with his grandparents’. Asked to elaborate on her comment about the ‘positive aspects’ of time with his father, the reporter said J enjoyed spending time with his father in a general sense, being with him, and engaging in activities with him. She did not accept the proposition that it was a reflection of his father being a ‘weekend parent’ with the luxury of free time and activities available. In her opinion, J’s enjoyment of his father’s company is at a deeper level and is related to the bond they have.
Amongst other things, J spoke to the reporter openly about difficulties he was having at school; he did not appear to be distressed about his suspension from school. His end of 2007 report, not available when the report interviews were held, was tendered and it notes: he has worked hard in the second semester, he listens more attentively, he is always keen to get on with the task at hand, he has grown in self-confidence and he is more willing to attempt new work, also he has learnt ways to manage his anger and cope with situations not to his liking, he is always willing to help the teacher and enjoys doing jobs. The reporter agreed it did not sound like a boy not enjoying school. Nonetheless, it remains the fact that he did have considerable difficulties at school as the suspensions plainly demonstrate.
On the grandparents’ evidence, from February 2007 the boys had grief counselling for a time at the local community health centre, but otherwise they were supported in dealing with their mother’s death by family and friends.

Issues

It is common ground that things between the grandparents and the father got off on the wrong foot all those years ago at their first meeting when the father’s dog killed a small dog which was the grandparents’ much loved family pet. It obviously still rankles since the grandfather spoke of the incident to the reporter with a great deal of anger and said they had disliked the father since. Still, there is plainly more to it and no one could doubt their views about their daughter’s relationship with him and their belief about his poor treatment of her and the children over the years plays a significant part in their negative attitude. Nor could there be any doubt that the father reciprocates the negativity.
To paraphrase the grandparents’ case:
(i)Essentially they regard the father as an irresponsible no hoper; they see him as having an itinerant and unsettled life unsuited to the care of a child; he has a history of drinking alcohol to excess and gambling; he did not provide proper financial support to the children or their mother; he did not assist with the children’s care; he has no history of caring for the children on his own; he has a violent and abusive disposition; and furthermore he is motivated in his application to have J live with him by the entitlement to government benefits and public housing. If that were to come about, he would not provide J with stability and they fear he would be moved from place to place and from school to school.
(ii)They repeated these views in their discussions with the reporter and their views are obviously shared by their son, the children’s uncle, whose evidence included the proposition that the father is ‘known for’ fighting and drinking and ‘hanging out with potheads’ in the south coast area, he has been barred from the hotel and nightclubs and RSL there, and he ‘stood over’ the mother and never provided for the family or helped out around the house or with the children.
(iii)Their views are reinforced by documents their daughter prepared before her death, including the affidavit she swore in August 2006 for the court proceedings she instituted. That and notes she is said to have dictated reveal a highly problematic relationship in which she describes the father as having a history of alcohol abuse - she relates specific examples of violent, abusive, unpredictable and irresponsible behaviour as well as damage to property while he was effected by alcohol.
(iv)They attribute N’s attitude towards his father to having witnessed much of what went on between his parents. Not in either of their affidavits but raised in discussion with the reporter is the allegation that the father had physically abused N some years ago by ‘fracturing his leg’. They maintain their efforts to encourage N to see his father have been to no avail and they say he should only see his father in the future if he wishes.
(v)They readily acknowledge J’s wish to go and live with his father – he has been quite open about it – but they maintain little weight should be given to this by reason of his young age, the complex implications of his mother’s death, and his father’s influence over him – the grandfather says J thinks it is ‘party time’ when he is with his father and that his father encourages him to ‘act up’ at home.
(vi)The children have lived with them for the past two years, they have an established history of caring for then, and they are well able to see to their upbringing. They do not want to see the children separated - the boys have a close relationship despite the five years age difference. They expressed concern to the reporter about how N would cope if J were to go and live with his father since he ‘frets for [J] when J is with his father. They agree J should spend time regularly with his father and speak with him regularly by telephone, which they maintain they have supported and say they will continue to support.
Much of this is denied by the father. His case might be paraphrased this way:
(i)He suggests the grandparents were interfering and controlling throughout his relationship with the mother; she had tried to ‘break free’ of their influence but her illness made it impossible. Nor were they entirely supportive of her when she was ill and had ‘kicked her out of the house’ at one point during 2006.
(ii)He maintains they have not encouraged his relationship with the children – they have destroyed mobile phones he has provided, thrown toys and gifts away or not passed them on to the children, and they make their negative opinion of him known to the children.
(iii)During the report interviews last November, the father said he was not prepared to consider the children either not living with him or being separated; he believed N’s attitude would change once the change was made. However, since the report issued several months ago the father accepts that N wishes to continue living with his grandparents and he does not now press to disturb that. But he does seek orders providing for N to spend time with him [and J] during school holidays.
(iv)A significant plank to his case is J’s strong and consistently held wish to live with him. Not unnaturally, it is the father’s view that, as his father and surviving parent, he ought to take over the responsibility for his upbringing and J could spend time regularly with his grandparents. He would keep them informed of matters related to his care.
(v)As for the children’s relationship with their grandparents, he says N has ‘positive feelings’ about them but J does not, and he described to the reporter and elaborated in his affidavit J’s teary reluctance to return to his grandparents at the end of visits with him.
(vi)He suggests the grandparents distinguish between the two boys - they see N as being like his mother and J being like his father - and he maintains their negative attitude towards him has negative consequences for J. As well, he says J has complained at times of inappropriate treatment by his grandparents and by his uncle who has hit him.

Issues - findings

There is no doubting each holds these beliefs. But that is not to say they could all be reflected in findings of fact, even on the balance of probabilities rather than a higher standard, because in some instances they are based on hearsay assertions or are unsupported conclusions. What follows are findings that are open on the evidence as a whole and are sufficiently material.
First to the father’s history. His movements combine with his patchy work history to paint a picture of an unsettled life. Obviously there have been challenges for him getting into a settled situation more recently and it is appreciated there is an element of timing involved in that. For example, his decision not to pursue N living with him came about after the release of the Family Report some months ago meant he had to position himself somewhere sufficiently near to B to allow the children to spend time together regularly, as well as locate work and housing. Ultimately he chose G, but that came with the court hearing looming and important things such as getting a job have not been resolved, much less allowed time to demonstrate a settled situation.
His contribution over the years to the care and general support of the children and their mother is a difficult issue to assess. The claims about shortcomings come from the maternal family, which is not to say they are necessarily wrong, but the source and accuracy of their knowledge has to be questionable when their evidence is examined. Even so, the overall picture suggests there were shortcomings in that quarter and it is also likely there were times when his behavior was irresponsible, unpredictable and even violent, more particularly when affected by alcohol. That does not come from second hand or vague claims such as being ‘known for’ fighting and drinking, being barred from hotels and clubs around the local area, or having ‘heard bad stories’ about him including ‘feedback’ from cousins and nephews. It comes from other indicators about his behaviour:
(i)The records of the ACT police include reports of complaints by the father in June 2000 alleging he had been harassed and assaulted on a number of occasions by a group of Aboriginal males; there had been no witnesses and he claimed to have been intoxicated so he did not recall the individuals involved; and he claimed a stabbing at a sports club had left him with an arm injury that had to be stapled. He suggested the harassment and assaults may have been based on ‘aboriginal problems associated with belonging to different tribes’. But police could find no record of disturbance consistent with his reports and in any event the father insisted no action be taken - he was reporting the assaults to be placed on a priority housing transfer.
(ii)Some months later in February 2001 there was another event involving the father and the ACT police. This followed a complaint by a taxi driver about the conduct of one of several passengers who became agitated after being asked not to eat in the taxi and struck the windscreen with enough force to crack it. The father is identified as the culprit. Police records note they had ‘dealings’ with him earlier in the night [he had no prior record with ACT police]. Asked about the event, the father now says he took the blame for someone else who did the damage, but it was not a convincing explanation given the unambiguous records.
(iii)Other records reveal that the father was convicted in 2004 of driving under the influence of alcohol with a high range PCA.
Quite apart from these encounters with authorities, there is other evidence reflecting on his behaviour towards the mother. His sister said he and the mother loved each other but both were ‘short tempered’ and argued a lot and both children would have heard that. The father describes their relationship in similar terms. He said it was ‘turbulent’ and there had been many arguments involving ‘pushing, shoving, shouting and yelling’ by both of them. But he denied he had ever hit her although he said he had punched walls, he had punched a hole in a wall on one occasion, and he had smashed the glass window of a house to get in. Even so, these concessions are likely to have been something of an understatement and there is other evidence indicative of his behavior over the years:
(i)Documents show that in 1997 the mother applied for a restraining order against him and the central allegation was that he had smashed the windscreen of her car with an axe. He denies it, though he concedes he smashed the car window.
(ii)It is also substantiated that the mother moved to a refuge with the children on two occasions - initially when she moved to Canberra and also in the south coast of New South Wales after they finally separated. The father denies this was the upshot of any violent or threatening behavior from him and says it was a strategy to obtain public housing. That is implausible, particularly when taken in conjunction with letters from the refuge and the mother’s affidavit which, it is recognized, remains untested since the proceedings were resolved by consent orders.
As I find, it is likely that the father’s history is largely consistent with the grandparents’ view of it.
Turning to the allegation that he struck N and fractured his leg on one occasion, the father denies this. Records produced by a Canberra hospital show that in June 2001 N [then 6 years of age] was admitted for 8 days or thereabouts. This was a few months after the taxi driver incident. He presented with a knee problem - he had been refusing to straighten his knee for the last five days, although he was in no obvious distress – and some days after his admission there is this entry:
‘Mum and grandparents present. [N] unwilling to straighten leg. [N] became upset when his Mum said he was injured while “wrestling” w Dad, crying and saying “No we weren’t, we were fighting, were fighting and Dad was hitting me & hitting me & hitting me. Nursing staff and Dr notified. He also cried when stating that he doesn’t want to get better and walk again. Very upset at the idea of having a straight leg and being able to go home.’
Later that same day, this entry:
‘Talking to pt about incident/injury, stated ‘dad hurt my leg’ when asked if they were playing around he said ‘no’ Ask where injury occurred if it was at home he said ‘no’ it was at Dad’s house’, Pt not wanting to talk about injury, by ignoring questions asked. Pt no c/o pain, still not (…) completely weight bearing, zimmer splint in situ…’
Apparently the years have not dimmed N’s memory or perception of what occurred, or it had been kept alive by some means, because he spoke of it late last year to the reporter. This passage comes from her report:
‘23. [N] said that his father has "hit" him and "hit my Mum" and that although he did not like his father he was not scared of him. He said that he knows that his father loves [J] and he thinks that his father "kind of loves" him. He said that he is worried about [J] and "did not want him to be hurt" and does not want him to live with their father. [N] said that he remembers his father hurting [J] and his mother but was not able to tell me any details about this.’
Asked about his statements in cross-examination, the reporter said N spoke of being hit by his father in a very matter of fact way and, while he did seem concerned about J being hurt, that appeared to relate more to a generalised anxiety about the sort of person his father is.
The mother referred to N’s injury in her affidavit filed in the Local Court where she said [paragraph 16]: ‘On one occasion he played very roughly with [N]. This left [N] in hospital in Canberra for a couple of days. He had (sic) wheelchair and was getting around on crutches. [N] is now frightened to play with his father.’ The hospital records read as if N was relaying something more than rough play to hospital staff, but it was not put higher than this by his mother in her affidavit and it is reasonable to infer she would have had no reason to withhold or minimise criticism of the father in that document if the event justified it.

In the final analysis, I could not find the father hurt N by any deliberate act or that it was anything other than rough play, although it may very well be that N perceives the situation differently, as do the grandparents.
Turning to matters raised by the father, there could be no finding about whether or not the grandparents were interfering and controlling or that they ‘kicked [the mother] out of the house’ when she was ill [the grandfather gave a short account of a brief exchange with the mother about an ice cream] because they are unsubstantiated conclusions.
His belief about their lack of support for his relationship with the children is based in part on the allegation that they have destroyed and withheld gifts and destroyed many mobile phones he has provided - on one occasion a mobile phone was thrown into the fire. His information appears to be based on things J has relayed to him. The phone in the fire incident is not without substance, at least as a young boy would relay it, because the grandmother explained that the box it came in had been thrown on the fire and J was allowed to believe for a time that the phone was in it. She maintains J is able to use the mobile phone freely and he is responsible for keeping it charged.
As I find, J’s relationship with his father can be seen as supported by his grandparents to the extent at least that they have supported his regular time with his father since the interim orders. But that is not to say he (or N) are shielded from their views about their father. Nor, it should be added, is J shielded from his father’s negative views about his grandparents.
As for the grandparents’ harsh treatment of J and things his uncle had done, again the father’s source of information for the most part is what J tells him, although the father relates things he has heard being shouted when he has arrived at the house. He has taken J’s complaints up with authorities. There have been visits by the police to the grandparents’ home and the Department of Community Services has spoken to the children at school after receiving complaints about their treatment of J. The investigations have come to nothing. The reporter did not observe anything about the relationship between J and his grandparents to give rise to concerns of maltreatment or the like. The grandfather told the reporter the uncle sometimes ‘growls’ at J, but J spoke to her of his uncle in positive terms. In the end, there is nothing to justify findings consistent with J’s complaints.
As for the contention the grandparents differentiate between N and J, the grandparents deny this happens - they say if a remark is made it would be related merely to physical appearance or resemblance. But the father is on firmer ground here. It is difficult to avoid the observation that the grandparents do make a distinction between the children which a reading of their discussions with the reporter amply demonstrates. The grandmother makes a clear distinction between the children when she describes them and their behavior, at least as she experiences it, and there are these passage from the report:
‘7. [The grandfather] said that [N] reminds him of his daughter and that he and his wife have few problems with his behaviour. He said, however that [J] is a difficult child and described him as having a "split personality". He added that [J] has problems at school which have led to frequent detentions and has recently been suspended from school.…’
and later
‘35. [N] is identified by the grandparents as being very like his mother and [J] as being like his father….’
The reporter is firmly of the view that these were references to personalities and not merely to physical appearance and I assess that as beyond argument. That is not to say for a moment it is conscious or deliberate; it is to say that the children are distinguished in the way discussed and a lot of it is negative content related to J.

Best interests

It remains to evaluate the best interest considerations before coming to a conclusion about the children’s future arrangements and discussing the form of orders. A number of the considerations in s 60CC refer to the child’s parents and strictly read might be thought not to apply to the circumstances where one party is a parent and the other is a grandparent. But those factors which specifically refer to ‘parent’ are of equal importance to the circumstances under consideration here and they will be read in that light.
primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Subject to the need to protect children from harm or other qualifying factor, it can be readily accepted that they benefit from having meaningful relationships with a parent or other carer/s and that is so for these children. To the extent they need to be protected from harm, that will be discussed later and these two primary considerations will be weighed with other considerations.
additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The views of both children are clear.
First, to N. Now 14 years of age, his attitude towards his father dates from at least 2006 when he was refusing to take his father’s calls at school, unlike his brother. But it is likely the breach was earlier. What led to it remains speculative since N has not identified any particular reason or discussed it. In her evaluation the reporter said it may stem from anxiety about being separated from his grandparents, the influence of his grandparents’ negative views of his father, his own experiences of his father, or a combination of all these things. From my point of view, the fact that he has not discussed it is a concern of itself because it leaves N carrying the grievance he is so obviously harbouring, unresolved and unaddressed.
Recalling the history of his family life, what this young lad had to confront during his mother’s illness and after her death, overlaid by the unrelieved hostile relations between his father and grandparents, old feuds ramped up by court proceedings, his alliance with his grandparents comes as no real surprise. Plainly his fixed position and his age present limited options here for any outcome other than what is sought by his grandparents. His father has largely recognised that by relinquishing his application that N live with him. But I do worry that if N does not have a relationship with his father, his surviving parent, in later years there may be implications for him related to issues of identity, belonging and self-esteem and I wonder if enough thought has been given to that or if enough done by all concerned to turn it around.
In the reporter’s opinion, N’s wishes should be given significant weight. That is accepted. He will remain living with his grandparents. But one of the decisions still to be made here is whether orders should be made to provide for him to spend time with his father when he wishes [his grandparents’ position] or whether orders should provide for him to spend time with his father during half of the school holidays [his father’s position] or make no order at all about his arrangements [the reporter’s view]. I shall return to these options later. It is noted that N did indicate to the reporter [paragraph 33] that he may at some time in the future agree to spend time with his father and he said he is prepared to spend some time with him in the holidays.
Turning to J, it is argued for the grandparents that his wishes should be diluted by having regard to his father’s influence and conduct. As the grandfather told the reporter, he believes the father:
‘….‘puts words into [J’s] mouth’ and that this is why [J’s] behaviour is often very difficult to manage, especially after he has spent time with his father. He said that [J] sometimes thumps the phone when he is talking to his father and that his wife, [the grandmother], has telephoned the police on at least one occasion when [J] has been ‘out of control’. He added that [J] has ‘screamed’ frequently since his mother died.’
This may accurately describe J’s behavior, but it cannot necessarily be linked to some malign influence from his father. On the contrary, it is the reporter’s assessment, which I accept, that J’s views about his father are the result of his deep attachment to and experiences of him.
J is not yet 9 years of age, but in my assessment his attitude is of such a consistency and strength that it should be given real weight. The force of that observation is underlined by pausing to consider the impact on J if his wishes are not translated into orders and his situation remains as it is [see R and R: children’s wishes (2000) FLC 93-000]. Asked about the likely effect on J of his wishes not being put into effect, the reporter said it would be extremely difficult for him and his behavior with his grandparents, which has already been ‘out of control’ on occasions, is likely to become worse. I accept that assessment. The irresistible conclusion is that J would be very upset and disappointed if his wishes are not put into effect and his response to that situation strikes me as likely to be quite challenging. Even the grandparents recognize the strength of his views since the grandfather and the father recently agreed J would go and live with his father – the grandmother did not support it when she became involved in the discussion and her concerns are understandable.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
N has a close relationship with his grandparents. The grandmother told the reporter she has a particularly close relationship with N since she cared for him for significant periods when he was young and there is no reason to doubt it. N’s relationship with his father requires no further elaboration.
J’s relationship with his grandparents has not been without its difficulties which have probably exacted a toll, but there is no reason to think these relationships have been in jeopardy of being broken or anything of that kind. I say that because, like his brother, J was observed to interact with them in a ‘relaxed and comfortable manner’ and the reporter agreed in cross-examination their relationships are close – her concern is about the grandparents attitude to him and the likely future impact when there are already signs of significant difficulties.
It can be taken that J has a relationship with his uncle within normal bounds despite the complaints he has made to his father.
J’s relationship with his father is close and he is very attached to his father. He was happy to see his aunt during the report process and his enjoyment of his time with her is indicative of familiarity and fondness between them.
As for the boys’ relationship with each other, there is a five year age gap and they appear to have quite different personalities and temperaments. Nonetheless, it can be said that the boys do have a close relationship. It is noted that N told the reporter they sometimes fight and he ‘love[s] him sometimes’ but nothing is to be made of that sort of qualification when speaking about a younger brother.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is convenient to deal here also with the matters contained in s.60CC(4) and (4A) of the Act which are:
[(4)     Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)      has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)     to communicate with the child; and
          (b)      has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)     communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
In the final analysis nothing supports a finding of shortcomings in either the father or the grandparents about taking or failing to take the opportunity to participate in decisions or spend time or communicate with a child. More problematic are the considerations related to willingness and ability to facilitate and encourage relationships, capacity to provide for the children’s needs, and attitudes to parental/carer responsibilities.
First, all of the adults have to share in the responsibility for not relieving the children of the pressure of having to deal with their angry and dismissive attitudes about each other. This sort of thing is debilitating for children generally and it must be so for these children. No one can take the high ground here since the strong feelings are mutual and it is obvious all have been willing to air their views with the children or at least not shield them from it. A particularly offensive example from the father’s side is his comment about the children’s grandmother in the letter he sent to the children during 2006 while he was in Western Australia.
The reporter noted at one point that these acrimonious relationships have prevented them from recognizing fully the important role they all play in the children’s lives and from recognizing how important each is to the children’s sense of themselves. The reporter also said that in both households it is likely the children will be exposed to negative views about the other and [since she was asked the question] there is no ‘preference’ for this happening in one environment rather than the other; it is not satisfactory or helpful for their long term wellbeing wherever it occurs. Since it is common ground there will be continuing involvement in the children’s lives to one extent or another, their capacity to meet the children’s needs and fulfil their obligations to them would be enhanced by at least observing commonplace courtesies and modelling for the children a more constructive way of addressing differences.
The grandparents’ belief about the father’s character when seen from their viewpoint, bearing in mind their support for their daughter and the children over the years, is understandable. Yet it is now some time since there has been any example of the sort of irresponsible and anti-social behaviour that peppered his past and perhaps not enough credit is given to him for that. Nor perhaps is he given enough credit for being the one to make the recent overture to discuss things directly with the grandfather, which apparently was a courteous encounter. They still see him as mobile and they are not confident he can properly care for J and give him the stability and constancy he needs. They could hardly be criticised for that.
The father’s belief that the grandparents are somehow responsible for the difficulties in his past perhaps the father perhaps does not take sufficient responsibility for the consequences of his own behaviour on their attitudes, nor does it give them enough credit for the important responsibilities they took on with not much assistance from him at a crucial time, or for the considerable positive aspects of what they have provided for the children.
All that said, it is accepted that the children have been well cared for by their grandparents in many ways. They provide a home that apparently runs effectively, they see the children have their needs for school, they support them with extra-curricular activities, and they are attentive to their needs in many and varied ways. They are capable of continuing to provide for the boys as they have to now, despite the challenges of J’s behaviour. I have no doubt they love the children and are genuinely motivated to do what they see is best for them.
Yet there is a concern about their differentiation between the boys; they do see N as the embodiment of his mother and J as the embodiment of his father. If it were no more than benign comments on differences between children or their resemblance to one parent or the other, that would be unremarkable. But observations of similarities become problematic when they carry the freight of emotional attachment to the children’s mother, on the one hand, and strongly negative views of their father, on the other. Made in that context, the question is whether they approach to N and J as individuals in their own right. And when a lot of J’s behaviour is described in negative terms, there is a concern about the impact on him of being seen through the filter of their attitude to his father. There is something of a footnote to this in the remark about J being spoken of as virtually responsible for the death of another family pet in a markedly similar way his father is held responsible for the death of a family pet all those years ago. More likely than not the grandparents are unaware of the distinction or do not appreciate it is happening, but the difference does come through in what they say and it must operate to undermine J’s sense of himself to be seen as ‘just like his father’ when it is well understood his father is seen as lacking in worth.
It is accepted there have been shortcomings in the father’s attitude to his responsibilities as a parent and in meeting the children’s needs. The decision to take J to Queensland was ill considered, albeit motivated by advice about his ‘rights’ - it was not long after their mother’s death, there was no plan, and it had the effect of removing J from N as well as his familiar surroundings. It comes as no surprise to hear the description of J’s unsettled and anxious response to the schooling that was organised. It is also accepted that the father has seemed to lack settled purpose and the series of changes he has made to his arrangements in recent times have not been suited to settling a child into a community and school. Now at G, he has not lived there before and without any apparent body of support from family/friends/community the arrangements do convey a sense of isolation. Added to all that, it is recognised that he has not yet been tested in the role of full time carer for his children or either of them. All of this weighs fairly considerably against his case. If J is to live with him and if he is to provide adequately for him, he will have to turn this around and make the commitment to seeing J established and settled either at G or [if, for example, he cannot get work there] somewhere which is no further from B where N will be living.
And yet for all that I do not think it gives the entire picture to see the father defined solely by what has occurred in the past. I have no doubt that he loves the children and I do not doubt that he wishes to do right by them, whatever might have gone before. Nor do I doubt that he is genuinely motivated to take on the responsibilities he seeks - I reject the case put that his motivation relates to entitlements to government benefits – and I am satisfied he will do his best to make his proposals work. He might not succeed all of the time in all areas, but in my assessment he is at least capable enough of taking on the responsibility for J, and N during the school holidays as he proposes, and I am satisfied he would provide at the very least good enough care for them.

The reporter supports J going to live with his father. Despite all of the problems that might be encountered with his father – and there are many unknowns and it comes with no guarantees - that is where J will be better able to have a more positive sense of himself and his self worth than if he remains living with his grandparents. In her opinion it would be untenable for J to continue in an arrangement that does not allow him to feel good about himself or be given the positives he needs. As she sees it, a continuation of the current situation raises concerns about his well being in the long term when he is already experiences serious difficulties. His end of year report had a positive ring, she acknowledges, but she does not see much cause to be optimistic about change for J’s circumstances in his grandparents’ household.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This is an important consideration. While the children have been in the care of their grandparents for some time now, it cannot be said that both boys are settled.
If their father’s proposals are adopted there would be a significant change for both children. Obviously it would mean J would move to his father’s care to be brought up by him and therefore the boys would be living some distance apart, not even in the same general vicinity where there could be some loose arrangements about their time together. That would be limited to J’s visits to his grandparents during school terms and school holidays, unless N were to take up his father’s proposal to also spend time with him in the holidays.
An important question arising from that scenario is the impact on the boys, short and long term, of living separately from this point in their development. They have already suffered a very significant loss through the death of their mother only some 20 months ago, the effect of which can hardly be overstated. Their separation, as the reporter pointed out, would not be the ‘ideal situation’ for either of them and if all things were equal there should be as few changes as possible in their lives. Nonetheless, it is her opinion that J should live with his father. As she sees it, if the boys’ relationship is supported and they do spend time together this would have a less detrimental effect than a continuation of the current situation.
That scenario would also mean other significant changes for J; a new town he is not familiar with, a new school, as well as leaving friends and his grandparents’ home. On the other hand, as the reporter points out, he would be with his father with whom he has a strong bond and the difficulties inherent in making such significant changes may well be counterbalanced by the benefits of being with his father.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There will be some practical difficulties and expense involved in the children spending time together if J goes to live with his father. However, the father’s proposal is clear and no particular issue was taken with the practical implications of those arrangements being implemented.
The same can be said of J remaining with his grandparents. That is, there will be practical difficulties and expense in his father continuing to spending time with him but that was not raised as a particular issue if that were the outcome.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
(h)      if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
[(6)     For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
          (a)      to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)      to develop a positive appreciation of that culture.]
There was no evidence directed to this issue and no submissions were made about it. Nonetheless, these are Aboriginal children with two different Aboriginal cultures as part of their heritage – their mother’s people are from the southern coast area and their father’s people are from Central Australia. Without knowing so, I imagine at a broad level there is a certain degree of commonality between those two cultures. But certainly there would be a vast range of differences – language and customs are two of the most obvious, amongst others.
I would think it essential to the wellbeing of these two boys that they appreciate, know about and take pride in their Aboriginal heritage. It could not be thought otherwise. But their grandparents and members of their mother’s family cannot teach them about their father’s culture – its language, customs, ceremonies, kinships, and traditions – and their father cannot teach them those same things about their mother’s culture whereas their grandparents can.
Whatever the outcome, on both proposals J will continue to move between his father and grandparents and so he is likely to get the benefit of whatever opportunities they offer in these areas of his learning and upbringing. N, on the other hand, unless the relationship with his father is repaired by some means, is not going to have the advantage of knowing about that part of his heritage and therefore that part of himself.
(j) any family violence involving the child or a member of the child’s family
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is not an issue.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In considering the father’s proposal of change for J and the various issues surrounding that, I asked the reporter for her views about reviewing the change some months hence if it is to be made. She was not unreceptive to such a course, but it was not taken up by the grandparents or the father or the independent children’s lawyer. That is entirely understandable and I do not take it any further. I am satisfied whatever the advantages of such an arrangement, they are likely to be far outweighed by the disadvantages, not the least being the unsettling effect of there being no ‘final’ resolution for the children, as well as making it less likely relationships can be repaired because the court proceedings have been prolonged.

Conclusion

It is agreed that responsibility for major decisions about the children – J and N - will be shared. Despite the difficulties, that is appropriate. The draft orders to give effect to this are fairly detailed. They identify the decisions to be made jointly and they provide a road map for information sharing and communication and resolving disputes. It is further agreed there will be no critical or derogatory remarks made about the other or members of the family in the presence or hearing of the children. It is also agreed that their father and grandparents will be able to attend events involving the children at sporting fixtures, extra-curricula activities, and at school functions that allow for such attendance. All of that is appropriate.
J’s arrangements are the first major point of departure. As to that, there is no ‘ideal’ outcome since both available options have their advantages and drawbacks.
The option of J remaining living with his grandparents would have the advantages discussed earlier. In short, both children would have the stability and care which their grandparents provide as well as the continuity of school and community and all that goes to make up their daily life. It would certainly see the boys continue to live together and therefore give them the usual shared experience of siblings being raised in the one household for the remainder of their dependency. And he would continue to spend time with his father regularly at weekends and during school holidays as he does now. These considerations of stability and continuity carry some weight and to that there can be added concerns about his father’s history and current circumstances discussed earlier.
The option of going to live with his father also has advantages for J as already discussed. In short, he has a close attachment to his father, he is bonded to him, and he experiences his father in a positive way. He has strong and consistently held wishes to live with his father and, notwithstanding his age and the obvious lack of appreciation of the implication of such a decision, they hold considerable weight in this case. As observed earlier, the force of that becomes apparent when pausing to consider the deep disappointment for J of not having his wishes acted upon and things remaining the same which is very likely to lead to more problematic behaviour, or even an escalation in its gravity. His father is genuinely motivated to take on this responsibility by his love for J, he is capable enough of doing so adequately, and he will provide him with good enough care.
In a difficult balance, it is my assessment in the final analysis that J should move to live with his father. It is not ideal. Neither option is. Both have inherent risks; staying in his grandparents’ care poses the risk that he will not gain a positive sense of himself or feelings of worth in the ways discussed earlier and going to his father has the risks associated with his father’s history of lack of stability and continuity and lack of experience in full time child focussed care. But the outcome I propose is the least detrimental of the two, all things considered, and I am satisfied on a difficult balance that it is more consistent with J’s best interests despite the considerable counterbalance of living separately from N.
It is acknowledged that this outcome is inconsistent with the option proposed by the ICL and while I see the merit of that and have considered the submissions of counsel to support it, I have been unable to come to that same conclusion.
Turning to the proposals about N’s time with his father, it is the reporter’s opinion that if N’s relationship with his father is to be repaired then that will be something N will have to do when he feels he is ready and he should be able to make his own decisions free from any pressures in his own time. I think this is sound. I share the view that orders are unlikely to assist him with that process and any perception of orders being a source of pressure or an inhibition is to be avoided. By the same token, it should be made clear to N that he can go and spend time with his father and his brother and that his father wants that to happen, so he is not left with the impression, by the absence of any orders, that this is not open to him. There is a small window in the Family Report where N said he would go if J were living with his father and I think it important N understands this window is open to him.
With this in mind, I have directed that arrangements have been made for the boys to attend at court when judgment is delivered and for a Family Consultant, the Manager Child Dispute Services, in company with the independent children’s lawyer to inform the children together of the decision.
Orders will be made for J to spend time with his grandparents and N, consistent with his father’s proposal, on alternate weekends during the school terms and for half of the school holidays. It is to be hoped that N will spend time with J at his father’s during the other half of the holidays but that will be a decision for him in his own time. The orders provide for J to spend the first half of the shorter school holidays with his grandparents, which may serve in some measure to encourage N to accompany him back to his father’s for the second half. The longer Christmas school holidays are alternated between first and second half so that the Christmas period will be shared. It will always be open to the father and grandparents to come to some other arrangement for that period along with others.
The father’s proposal to share the travel so that the boys can spend time together seems to be appropriate since that entails a sharing of the responsibilities towards the boys and ensuring their relationship is maintained through time spent together. Therefore the orders adopt that proposal.
It remains to say that this change of arrangements can be implemented during the forthcoming school holidays. It will be appropriate for J to make the move before he is due to start the next term at a new school in sufficient time to settle in and prepare for school. Therefore the orders will take effect 10 days before the start of the new term. This will give him a few more weeks with his grandparents and N before making the move and in the meantime his father can make the necessary arrangements to enrol him and see to the other practicalities to do with a change of school.

Schedule of Orders Sought

Orders sought by Maternal Grandparents (exhibit 1)

Orders for Parental Responsibility.

That all previous Orders be discharged.
That the Maternal Grandparents and the Father have shared parental responsibility for the children [N] born […] April 1994 and [J] born […] August 1999 in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:-
(a)        The education of the children — both current and future;
(b)        The religion of the children;
(c)        The health of the children;
(d)Any change to the children's living arrangements that may make it significantly more difficult for the children to spend time with any party.
That the Father and Maternal Grandparents shall refrain from making critical or derogatory remarks about each other or members of their family in the presence or within the hearing of the children and shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about each other or members of family in the presence or within the hearing of the children.
That each party be entitled to attend all events involving the children including, but not limited to:-
(a) sporting fixtures;
(b)extra curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation — AND the party who has the child or children in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child's transportation to and from the event unless otherwise agreed upon between the parties.

Orders for parental communication:

That the Maternal Grandparents and the Father inform each other as soon as is reasonably practicable of:-
(a)any medical problems or illness suffered by the children, whilst in their care.
(b)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(c)their residential address;
(d)their telephone contact number ;
(e)any other matter relevant to the welfare of the children.

Orders for Dispute Resolution:-

That in the event the parties cannot reach a joint decisions about:-
(a)      a major long-term issue involving the children; or
(b)      the interpretation of these Orders; or
(c)       the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the children, each of the parties will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.

Orders for living with each parent:-

That the children [N] and [J] live with the maternal grandparents.

Orders for spending time with each party upon significant occasions:-

That the child [N] shall spend time with the Father in accordance with his wishes.
That the child [J] shall spend time with the Father as follows:-
(a) upon such occasions as the parties agree from time to time;
(b)During school term, each alternate weekend from 4.30pm Friday until 6.30pm Sunday with the Father to collect and deliver the child from the Grandparents
(c)For the Fathers Day weekend from 4.30pm Friday until 6.30pm Sunday
(d)During school terms from after school each Tuesday until 8.00pm
(e)During school holidays for the first half in term one, term two, term three and term 4 in even numbered years and the second half in odd-numbered years.
(f)On the child's birthday from 4.30pm to 8.00pm.

Orders for communication:-

That the father communicates with [J] by telephone on a free and liberal basis.

Additional Orders:

That each party is to ensure that the children take their appropriate medication and that the medication is supplied by each party when the children are spending time with them respectively.
That the father not consume alcohol while [J] is in his care.
In the case of any medical emergency the party that the child is spending time with is to contact the other party to notify them of that emergency as soon as possible.
That each party provide all necessary authorities to the children's treating physician to allow the other party to discuss the children's medical condition.

Orders Proposed by the Father – Where Different from Application Filed (exhibit 3)

That the Father and the Maternal Grandparents have equal shared parental responsibility for the children [N] born […] April 1994 and [J] born […] 1998.
That the child [N] born […] April 1994 live with the Maternal Grandparents.
That the child [J] born […] 1998 live with the Father.
In all even numbered years commencing 2008, that the children spend the first half of all NSW gazetted school holiday periods with the Father and the second half of all NSW gazetted school holiday periods with the Maternal Grandparents.
In all odd numbered years commencing 2009, that the children spend the first half of all NSW gazetted school holiday periods with the Maternal Grandparents and the second half of all NSW gazetted school holiday periods with the Father.
That the child [J] spend each alternate weekend with the Maternal Grandparents from 6.00pm Friday until 3.00pm Sunday, or as agreed between the parties.
That for the purpose of the implementation of these orders the transport of the children is to be shared equally between the parties.
That the maternal grandparents be restrained from physically disciplining the children.
That the parties be restrained from denigrating the other party in the presence of or within the hearing of the children.

Orders sought by ICL (exhibit 18)

Orders for Parental Responsibility:

That all previous Orders be discharged.
That the Maternal Grandparents and the Father are to have equal shared parental responsibility for the children [N] born […] April 1994 and [J] born […] August 1999 in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:-
(a)The education of the children – both current and future;
(b)The religion of the children;
(c)The health of the children;
(d)Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any party.

That the Father shall refrain from making critical or derogatory remarks about the Maternal Grandparents or members of their family in the presence or within the hearing of the children and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Maternal Grandparents or members of his family in the presence or within the hearing of the children.
That the Maternal Grandparents shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the children and that the Maternal Grandparents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the child.
That each party be entitled to attend all events involving the children including, but not limited to:-
(a)sporting fixtures;
(b)extra curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation – AND the party who has the child or children in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parties.

Orders for day to day care, welfare and development:

That the Father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children spend time with the Father.
That the Maternal Grandparents shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children spend time with them.

Orders for parental communication:

That the Maternal Grandparents shall ensure the Father is kept informed as soon as is reasonably practicable of:-
(a)any medical problems or illness suffered by the children, whilst in the care of the Grandparents;
(b)any medication that has been prescribed for the children whilst the child is in the care of the Grandparents;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children whilst in the care of the Grandparents;
(d)any social, school or religious functions which the children is to attend whilst in the care of the Grandparents;
(e)the residential address of the Grandparents;
(f)the telephone contact number of the Grandparents;
(g)any other matter relevant to the welfare of the children.
That the Father shall ensure the Maternal Grandparents are kept informed as soon as is reasonably practicable of:-
(a)any medical problems of illness suffered by the children, whilst in the care of the Father;
(b)any medication that has been prescribed for the children whilst in the care of the Father;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children whilst in the care of the Father;
(d)any social, school or religious functions which the children are to attend whilst in the care of the Father;
(e)the residential address of the Father;
(f)the telephone contact number of the Father;
(g)any other matter relevant to the welfare of the children

Orders for Dispute Resolution:

That in the event the parties cannot reach a joint decisions about:-
(a)a major long-term issue involving the children; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the children, each of the parties will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parties, each of the parties is to take the following steps:-
(a)do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act;
(b)participate in Family Dispute Resolution with a person authorised under the Family Law Act.

Orders for living with each parent:

That the children [N] and [J] live with the Maternal grandparents.

Orders for spending time with each party upon significant occasions:

[N] will spend time and communicate with the father at times and in a manner upon he himself requests. Their Maternal Grandparents are to facilitate any such time with his Father that [N] requests.
That the child [J] shall spend time with the Father as follows:-
(a)upon such occasions as the parties agree from time to time;
(b)During school term, each alternate weekend from 6.00pm Friday until 6.00pm Sunday with the Father to collect the child from the Maternal Grandparents at 6.00pm Friday and the Maternal Grandparents to collect the child from the Father at 6.00pm Sunday.
(c)Fathers Day from 12.00pm to 5.00pm;
(d)In odd-numbered years from 4.00pm Christmas Eve to 4.00pm Christmas Day and in even-numbered years from 4.00pm Christmas Day to 4.00pm on Boxing Day.
(e)On the child’s birthday from 3.00pm to 6.00pm;
(f)For one half of the NSW school holiday period as agreed between the parties but failing agreement for the second half.

Orders for communication:-

That the Father communicates with [J] by telephone on a free and liberal basis.
That for the purpose of communicating information between the parties, they may communicate by:
(a)      telephone;
(b)      in writing;
(c)       electronic means such as email.

Additional Orders:

That each party is to ensure that the children take their appropriate medication and that the medication is supplied by each party when the children are spending time with them respectively.
In the case of any medical emergency the party that the child is spending time with is to contact the other party to notify them of that emergency as soon as possible.
That each party provide all necessary authorities to the children’s treating physician to allow the other party to discuss the children’s medical condition.
That the Father refrain from consuming alcohol during the time that either child is spending time with him.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date:

[2008] FamCA 459

20 June 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Remedies

Costs

Appeal