WELLS & ANOR & DELMONTE and VINCENT & WELLS & ANOR - [2020] FCCA 2084

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELLS & ANOR & DELMONTE and VINCENT & WELLS & ANOR

[2020] FCCA 2084

Catchwords:
FAMILY LAW – Parenting – interim applications – mother of three dies suddenly – maternal grandparents who lived near and supported mother keep children – father of youngest child and with equal shared parental responsibility and alternate weekends seeks recovery of youngest child to him – father of middle child with autism and unknown court orders but limited actual contact with child takes child after funeral - maternal grandparents seek a recovery order for middle child – oldest child (16) self-places with maternal grandparents – allegations that now deceased mother previously told father of middle child and his mother that maternal grandfather had raped her as a child - allegations not pressed for consideration at hearing – children to live together with maternal grandparents – children to spend time with respective fathers pursuant to existing known orders as if maternal grandparents stand in place of deceased mother – appointment of ICL – likely transfer to Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 60CC(3), 64B, 65AA, 65D, 69ZL, Part VII

Cases cited:

Vincent & Wells [2019] FamCA 578

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346

Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101

Deiter & Deiter [2011] FamCAFC 82

SS v AH [2010] FamCAFC 13

Eaby & Speelman (2015) FLC 93-654

First Applicant:

MR WELLS

Second Applicant:

MR WELLS

Respondent:

MR DELMONTE

File Number:

SYC 4835 of 2020

Applicant:

MR VINCENT

First Respondent:

MR WELLS

Second Respondent:

MS WELLS

File Number:

SYC 4298 of 2020

Judgment of:

Judge B Smith

Hearing date:

20 July 2020

Date of Last Submission:

20 July 2020

Delivered at:

Sydney

Delivered on:

20 July 2020

REPRESENTATION

Counsel for the Applicants in SYC4835/2020:

Mr Todd

Solicitors for the Applicants in SYC4835/2020:

Hinde Ginges Boyd Lawyers

The Respondent in SYC4835/2020 appeared for himself

Mr Delmonte

Counsel for the Applicant in SYC4298/2020 :

Mr Gardiner

Solicitors for the Applicant in SYC4298/2020:		Anderson Boemi Lawyers
Counsel for the Respondents in SYC4298/2020:	Mr Todd

Solicitors for the Respondents in SYC4298/2020:

Hinde Ginges Boyd Lawyers

ORDERS

IN PROCEEDINGS SYC4835/2020

The matter be listed on 2 October 2020 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these Orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
The parties are to arrange for the child, Z born in 2009, to be returned to the maternal grandparents in 2020 and are to negotiate a time and meeting point approximately halfway between the parties to make the change-over.
Pending further Order, the child Z live with the maternal grandparents.
Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the child Z born in 2009.
The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.
The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this Order forthwith.
Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing Orders and copies of any relevant reports.
The parties facilitate the attendance upon his/her representative of the child at times and dates requested by that representative.
Leave be granted to the Independent Children’s Lawyer to issue more than five subpoena.
Liberty is granted to the parties, and any Independent Children's Lawyer, to approach the Court in Chambers to have the matter relisted on short notice.
Leave be granted to the parties to issue up to 10 subpoena.
The matters SYC4298/2020 and SYC4835/2020 be case managed together, and subject to further Orders to be heard together.

AND THE COURT NOTES THAT:

The parties are to liaise as to an appropriate arrangement for the child to spend time with the father between his return on 28 October 2020 and 2 October 2020.
Unless there are any issues requiring further determination on an interim basis the Court anticipates that the matter being both long and potentially complex will be transferred to the Family Court of Australia.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.

IN PROCEEDINGS SYC4298/2020

The matter be listed on 2 October 2020 at 9:30am for mention.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
Pending further Order, the child, X born in 2011, live with the Respondent maternal grandparents.
The child spend time with the Applicant father:
(a)until the commencement of term 1 in 2021:
(i)from 9:00 am on Saturday until 2:00 pm on Sunday each alternate weekend, with changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E, NSW;
(ii)in the third mid-term school holiday in the first weekend the child spends with the father the time will commence from 7pm Friday to 2pm Tuesday, and
(iii)in the 2020/2021 end of year holiday period the weekends;
A.the child shall spend time with the father from 11.00am 24 December 2020 until11.00am 26 December 2020,
B.if that Christmas time is not otherwise the weekend the child spends with the father then it will be in replacement of the previous weekend, and
C.in January 2021 the alternate time will commence from 7pm Friday to 2pm Tuesday and shall conclude at the latest 4 days before school term in 2021 commences.
(b)from the commencement of school term I in 2021 the child shall spend time with the father:-
(i)during school terms from 7pm Friday to 2pm Sunday each alternate weekend with changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E, NSW; and
(ii)for the first half of school holidays in odd numbered years and for the second half of the holidays in even numbered years with changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement McDonalds Suburb E, NSW subject to the child being returned to the maternal grandparents at the end of December/January holiday 4 days before school term commence.
Notwithstanding the above orders, in the event that the child will otherwise spend the weekend with the maternal grandparents on Father's Day, such alternate weekend shall switch to that weekend so the child will spend the weekend with the father on Father's Day.
In relation to Christmas periods, the following shall apply, notwithstanding the above.
(a)the child will spend Christmas with the father from 11.00am 24 December 2022 until 11.00am 26 December 2022 and each alternate year thereafter, with changeover to take place at Suburb E, as set out above; and
(b)the child will spend Christmas with the maternal grandparents from 11.00am 24 December 2021 until 11.00am 26 December 2021 and each alternate year thereafter, with changeover to take place at Suburb E, as set out above;
The father will ensure that the child is able to contact her maternal grandparents by telephone during any time she is in his care, and will ensure she has access to a telephone to do this. For this purpose, the maternal grandparents may nominate a telephone number that the child can call and provide it to the father.
The party with who the child is not living or spending time shall have telephone or other electronic communication with the child each Wednesday between 5.00pm and 6.00pm and the other party will ensure that the other has appropriate telephone numbers and will make the child available.
Each party shall ensure the child's timely and appropriate attendance at school.
The father is restrained from using or being affected any illicit drugs while the child is in his care.
The father continue to engage with an appropriate therapist for the purpose of drug and alcohol counselling for as long as the therapist deems such engagement necessary.
Each party is restrained from speaking about the other parent or member of their family or household in a negative, derogatory or offensive manner in the presence or hearing of the child, and will remove the child from the presence or hearing of any third party that does so.
Each party will forthwith and contemporaneously with the event advise the other of any significant illness or injury requiring hospitalisation or specialist medical appointment relating to the child, and will provide all consents, authorities and instructions to allow each parent to be advised with respect to any treatment and to visit her if hospitalised.
The parties will continue any counselling for the child engaged in pursuant to order 17 of the Orders of 14 March 2019 and still in place as at the 1 July 2020.
For the purpose of any communication required relating to the child and pursuant to these orders, each party will within seven (7) days provide the other with a current email address ( and will notify the other party of any changes to their email address within seven (7) days).
Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the child X born in 2011.
The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child. The Legal Aid Commission of New South Wales is requested to consider appointing the same Independent Children’s Lawyer who appeared in Vincent & Wells (P)PAC5705/2011.
The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.
Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
The parties facilitate the attendance upon his/her representative of the child at times and dates requested by that representative.
Leave be granted to the Independent Children’s Lawyer to issue more than five subpoena.
Liberty is granted to the parties, and any Independent Children's Lawyer, to approach the Court in Chambers to have the matter relisted on short notice.
Leave be granted to the parties to issue up to 10 subpoena.
The matters SYC4298/2020 and SYC4835/2020 be case managed together, and subject to further orders to be heard together.

AND THE COURT NOTES THAT:

The time with and consequential orders relating to the child’s time with the father are intended to reflect the orders of 14 March 2019 in Vincent & Wells PAC5705/2011, where the maternal grandparents are for the time being to stand in the place of the deceased mother Ms Wells.
Unless there are any issues requiring further determination on an interim basis the Court anticipates that the matter being both long and potentially complex will be transferred to the Family Court of Australia.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders .

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4835 of 2020

MR WELLS

First Applicant

MS WELLS

Second Applicant

And

MR DELMONTE

Respondent

SYC 4298 of 2020

MR VINCENT

Applicant

And

MR WELLS

First Respondent

MS WELLS

Second Respondent

REASONS FOR JUDGMENT

These are short form oral reasons for decision pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”) in two interim applications for parenting Orders within Part VII of the Act. Whilst it will always be preferable to provide a written decision if possible, when one weighs the delay against the needs of these young children in the circumstances of this case, I am comfortably satisfied that it is most appropriate to give an oral decision now.
There are two cases, which are related, before the Court today and they involve three children.
These applications arise from the tragic death of their mother, Ms Wells, in 2020, just over one month ago. Apparently, the direct cause of death was a heart attack, but the cause of the heart attack is unknown, and there is a suggestion that prescribed methadone use may have been an antecedent cause of death, but that is not known. The fact is that Ms Wells had had a problem with addiction, and that may be relevant.
The short history of the parties are that Ms Wells had three children by two different fathers. Both of the fathers are present today in the two different cases, and I will provide more information about the procedural aspect of the case in a moment.
Ms Wells’ first partner, Mr Delmonte, was the father of Y, born in 2004 now 16, and Z born in 2009 and now 11. Z has been diagnosed with autism spectrum disorder. Mr Delmonte is representing himself as the matter has come on as an urgent recovery application. I note that he lives in Town E.
Ms Wells’ second partner, Mr Vincent, who is now 40, was the father of her third child, X, born in 2011 and now 9.
Throughout their lives, and at the time of Ms Wells’ death, the children lived together with their mother. The children at the time of death were living with their mother in Town F which is north of City G on the Region H of New South Wales.
It is clear that Ms Wells had the support of her parents, Mr Wells and Ms Wells, the maternal grandparents, across the course of her life and, indeed, in dealing with the children. Mr Wells and Ms Wells moved from Sydney in about July of 2018 to Town F upon Mr Wells’ retirement, and Ms Wells followed with the children at about that time. At the time of Ms Wells’ death the children were living in Town F with her, and they were living relatively near the maternal grandparents, Mr Wells and Ms Wells.
The two matters come before the Court as a consequence of Ms Wells’ death. Firstly, in the matter of Vincent & Wells & Wells, which is brought by Mr Vincent in respect of X’s. Mr Vincent, with the assistance of legal representatives and counsel, has brought an application to have X live with him. That application is in his initiating application filed on 1 July 2020 and seeks interim Orders that, in effect, the respondent grandparents, who are Mr Wells and Ms Wells, return X to him, that he, Mr Vincent, have sole parental responsibility for X, and that X lives with him.
Mr Vincent proposes that he would, at some future stage, particularise the time that X should spend with the maternal grandparents after the return of the child. He also seeks that the arrangements set out in the Orders made on 14 March 2019 be dismissed.
The Orders made on 14 March 2019 were made as between Mr Vincent and Ms Wells, and they followed a hearing before Justice Benjamin in March 2019 which resulted in Orders for X to live with Ms Wells and spend increasing time with Mr Vincent.
The parties have provided a copy of that judgment which is reported as Vincent & Wells [2019] FamCA 578, and I note that I have also been provided with a copy of the report of Dr F of 2018 which went to those proceedings. It was pursuant to these Orders that X was living with Ms Wells and spending time with Mr Vincent. Now, when the Orders were made, equal-shared parental responsibility was granted to Ms Wells and Mr Vincent. Mr Vincent has parental responsibility for X.
However, the Orders provided for a continuation of supervised time between X and Mr Vincent for a period of time which eventually resulted in unsupervised time and at Order 4e:
e. thereafter from 1 January 2020 until the commencement of term 1 in 2021 from 9:00 am on Saturday until 2:00 pm on Sunday each alternate weekend with such time to occur at the home of the paternal grandparents for the first six (6) months and being subject to Order 4(f). With changeover to occur in Suburb E at a place agreed between the parties and in the event that there is no agreement then at McDonalds Suburb E NSW;
And, as I understand it, from June of this year the arrangement was meant to proceed so that X would spend time with Mr Vincent in his own home with his partner, Ms G, who has been very supportive of him.
Now, since there are Orders in place the question of Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84 was raised with counsel for Mr Vincent, and he quite sensibly and necessarily conceded that there could be no Rice & Asplund point where there been a significant change in circumstances which would require the Court to reconsider the appropriate Orders. There can be no doubt that the death of the parent with whom the child was to primarily living is such a change of circumstances, and I proceed on that basis.
The maternal grandparents have filed a response, and in their response filed on 15 July 2020 they seek interim Orders asking for the discharge of the previous Orders; the appointment of an Independent Children’s Lawyer, and I note that both counsel agree that that is appropriate in this case and I think it is essential. They also seek Orders that they have parental responsibility for X, and I note that they seek sole parental responsibility for themselves rather than equal-parental responsibility with Mr Vincent despite the fact that Ms Wells had equal-parental responsibility with him. That may be something to consider at another time.
Then they propose, in effect, very similar Orders as I understand it which would continue the position that existed where X would spend time with Mr Vincent, going forward. On one view, what they are proposing is that they will, subject to the question of parental responsibility, step into Ms Wells’ shoes, and X will continue to live with them; go to school in Town F; and they will continue to promote the relationship with Mr Vincent.
Now, before I go further considering X’s case, it is necessary to consider the second matter that has come on before me just today on an urgent basis, and that is the matter of Wells & Delmonte. In this second matter an initiating application filed by Mr Wells and Ms Wells, the respondents in the first case, they are seeking an Order against Ms Wells’ first partner, Mr Delmonte, that he return Z to them.
There are many disputed facts in the matter, and I will consider the law about that in a moment, but in short terms it appears that after Ms Wells’ funeral, Mr Delmonte spent time with Z and then took Z home with him. Now, I note that Mr Delmonte told me today that that was Z’s decision, but I do not accept that an 11 year old with a diagnosed autism disorder made the relevant decision. Regardless of what Z said, the decision was Mr Delmonte’s.
Now, the Orders that are sought by the maternal grandparents in respect of Z are set out in the Initiating Application filed today, which is, in effect, by way of a recovery Order. Rather than acting ex parte, as I was urged to do by counsel for the grandparents Mr Wells and Ms Wells, since it is not suggested by that Mr Delmonte would intentionally harm Z or would do other than his best to try and take care of Z, it seemed inappropriate to me to treat this as an ex parte recovery matter. Instead, by everyone’s consent, a telephone call was made to Mr Delmonte, and he has answered the phone and taken part himself.

I considered whether given that he is self-represented it would have been more appropriate to defer the proceedings, and I note that rights of procedural fairness are highly relevant, but when the Court is asked to look at the best interests of a child, it seems to me that the law concerning procedural fairness is clear in that it is depends upon the overall circumstances. I am satisfied that it is appropriate where children or, indeed, a child such as Z has been unilaterally removed by a parent with whom, as I will come to, Z had had very limited contact in the last year or before that, immediately after the death of his mother, and taken to a strange house with someone he does not have a deep relationship with, and where he has autism, that it is appropriate to proceed, and I have done so.
Now, in effect, Mr Wells and Ms Wells ask that Mr Delmonte return Z to live with them so that the three children can continue to live together and so that Z and X can continue to go to their schools, noting that Z has been streamed appropriately with special support noting his disabilities.
I note that there is some dispute about what happened with Y. There is no doubt that Y is currently with the maternal grandparents. It seems to me most likely, given he is 16 and has left school, that that is his decision and it has not been forced upon him by the maternal grandparents. I am satisfied that there are no procedural issues with Y.
I am satisfied that it is appropriate, necessary and in the best interests of the children to make Orders today in respect of both X and Z, and, to the extent to which they are relevant, Y, although I note that with a 16 year old we have reached the point where he is almost 16 and a half, and the chances of him complying with this Court’s Orders do not seem to be high.
Before I proceed further to consider the matter, I will consider the legal rules which bind me. Obviously, it is not merely a question of this Court doing whatever it feels. The Parliament of the Commonwealth of Australia has set down very specific provisions and those laws have been interpreted by appellate Courts which bind me, and I am required by law to approach the matter consistent with those laws.
In short summary, what are sought by the different parties, and I proceed upon the basis that Mr Delmonte asks that Z remain with him, are parenting Orders as defined in Part VII, division 5 of the Act, see section 64B, and the Court’s powers to make such Orders in 65D. The paramount consideration that I must always have at the forefront of my mind and which binds me in any decision I make are what are the best interests of these children. I note section 60CA and 65AA.
The primary considerations when determining the best interests of the children are set out in section 60CC(2), and first and foremost are to protect the children from physical or psychological harm, or being subjected to, or exposed to, abuse, neglect or family violence. Second after that is to promote the benefits to children of having a meaningful relationship with both parents. And those are the “twin pillars” referred to in Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520.
There are, of course, additional considerations as set out in section 60CC(3) which I am to consider, although I note it was said in Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 that:
… it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial.
I note that the principles in Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 require me to consider the competing proposals, which I have and I will come to the issues in dispute, but what the Full Court said in 2006 is very relevant to this case. They said at [81]:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
They also said in Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101 in 2010 that this interim hearing and the Orders I make today are:
…a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing…
They also made it clear that a conservative approach is to be adopted and that any factual findings be made at an interim hearing, if to be made, should be:
…couched with great circumspection…
However, as the Full Court also said in Eaby & Speelman (2015) FLC 93-654 in 2015:
…that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
Now, because of certain issues that were raised, the Court must consider assessing risk and the protection of harm from the children on an interim basis. What the Full Court has said in Deiter & Deiter [2011] FamCAFC 82 in 2011 was:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In a similar manner in SS v AH [2010] FamCAFC 13 the Full Court said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
I note that counsel for Mr Vincent said in the hearing that he would urge the Court to make a decision, since no decision today in effect is a decision and the welfare of children cannot wait for the collection of all evidence. That is, again, another reason why I, holding the same view, have proceeded today.
Now, at the start it is important to note that the main issue of risk that was raised by Mr Vincent in his documents and set out on page 4 of his Notice of Risk was that:
1)The Applicant Father has concerns the maternal grandfather may sexually abuse Applicant’s daughter X (“the Child”) whilst living with the maternal grandparents. This is based on historical allegations he has recently become aware of, relating to the maternal grandfather sexuallly(sic) abusing the Child’s mother; and
2)That the maternal grandparents are keeping the child from the Father and from the paternal grandparents.
3)The Father acknowledges that there have been no disclosures made by child, X, and the Mother has a long history of drug use.
The specifics of the allegations are set out in Mr Vincent’s Affidavit starting, in short, at paragraphs 46 and 47 under the heading Risk where he says:
46. In my dealings with Mr Wells and Ms Wells over the past 9 years, I have serious concerns that X is at serious risk of being emotionally, psychologically and possibly, physically and sexually abused.
Although he relies upon:
Especially having most recently heard allegations that Mr Wells raped and sexually abused his daughter Ms Wells…when she was young.
Now, apart from that particular allegation, it is not clear what he is purporting to rely upon. The source of the allegation is set out in particular in paragraphs 66 to 67 of his Affidavit. He gives evidence about going after Ms Wells’ death to D Town, and he met with Mr Delmonte and, as I understand it, Mr Delmonte’s mother who I understand to be Ms M.
He says :
65. My mother and Ms G arrived in D Town on 16 June, around 6.00 pm. I called Mr Delmonte told him my mother and partner had arrived in D Town and arranged for all of us to meet up at the N Hotel about 6.30 pm for a chat and drinks. On arrival I introduced Mr Delmonte and Ms M to my mother and Ms G and they met.
66. Whilst at the N Hotel, we talked about what has been happening over the years and I explained I had concerns over the intimacy level I have observed over time, between Mr Wells and X. Ms M then said to me using following words "You did know that she was sexually abused by Mr Wells as a child?, Ms Wells also told me that Mr Wells had molested her?" I was totally shocked as was my mother and Ms G and I reacted saying "What?" Ms M explained to us that Ms Wells told her this and also told two other family members on Mr Delmonte's side of the family. We continued to share stories of what happened to one another and our stories were very similar with respect to accusations made by Ms Wells about us both allegedly hitting Ms Wells, doing all that bullshit Ms Wells made up. Mr Delmonte also explained he had a lot of issues with access to his sons over the years, no shows at scheduled visits and no phone communication.
67. In a further conversation with Mr Delmonte, he said to me using words to the following effect "Ms Wells told me and I think it was about 15 years ago that her father Mr Wells had raped her when she was younger."
Whilst Mr Vincent says that he had never been aware of any suggestion that Mr Wells had sexually abused Ms Wells, he claims that Ms M had told him that Ms Wells had told her that Mr Wells had molested her.
It is not clear why Ms Wells would have told Ms M that, or when she told her that, or why Ms Wells would have maintained such a close relationship with her father and allowed him to spend so much time with her children if this was something that she was concerned about to the point where she would tell Ms M.
Mr Vincent also says that Mr Delmonte told him that Ms Wells, about 15 years ago, told Mr Delmonte that Mr Wells had raped her when she was younger.
Now, those are very serious allegations, but Mr Vincent does not say Ms Wells said them to him, but he relies upon what was said to him by Mr Delmonte and Mr Delmonte's mother when, as I understand it, Mr Delmonte was there.
Significantly, Mr Delmonte, who appeared and spoke for himself, was asked whether he had any concerns for Z living with the maternal grandparents and at no stage did he mention any such allegations. In those circumstances, counsel for Mr Vincent quite properly did not and could not press them, as his client’s information was solely based on what hearsay he is said to have had from Mr Delmonte and Ms M.
Mr Delmonte, when given the opportunity to tell the Court what his concern was, did not say for example “I am concerned about Z living with the maternal grandparents because Ms Wells told me Mr Wells had sexually abused her when she was young.” He referred to them being older and a number of other things.
Now, that would have been an absolutely stunning omission if there was any truth to the claim that Ms Wells had told Mr Delmonte that she was sexually abused by Mr Wells.
I am not in a position today, as I have indicated, to make any findings of fact about what has gone on, and I do not know where or how this material has ended up in Mr Vincent’s Affidavit, but it was not pressed on Mr Vincent’s behalf, nor could it be, nor was it pressed on Mr Delmonte’s behalf.
In those circumstances, while someone may at some stage want to investigate why, it seems to me that all I must say is that despite this evidence having been raised as hearsay material, no one has pressed it today, and I give no weight whatsoever to this hearsay evidence which was not supported by Mr Delmonte. I give no weight to it whatsoever in considering any risk to the children.
The other risk that Mr Vincent raised is that the maternal grandparents ceased his time with X. Now, that was very unfortunate. They say that was because of Mr Vincent’s conduct and, I suspect, because of the fact that Mr Delmonte took Z without notice, they were worried he was going to do the same thing. And that is very unfortunate, but I am not satisfied that this suggests that they will not support X’s relationship with Mr Vincent.
Indeed, when I go to Justice Benjamin’s decision it is quite clear, and it was pointed out quite accurately at paragraph [50], that it appears that he said that:
That, it seems, is to the credit of the maternal grandfather who makes sure the children get to school every morning.
There clearly have been issues with school attendance, although, according to this judgment, they were improving. Also, whilst Mr Vincent’s counsel, as he was perhaps obliged to do, sought to lay those issues at Mr Wells and Ms Wells’ feet, they were providing their support to Ms Wells who had a troubled past.
I note that Mr Vincent, although he had a significant history of drug abuse, it is not suggested that he is other than abstinent now. It is clear that the maternal grandparents were providing support to their daughter, but that does not mean they were able to entirely control her. I think it is worth reading onto the record what Justice Benjamin said, having seen the maternal grandfather give evidence just over a year ago, and I will read it onto the record:
Mr Wells
61. Mr Wells is the maternal grandfather. He was the second breath of fresh air in this hearing. He was criticised by counsel for the father, but he has stayed the course. He has managed to get the child to school. He has managed to get the child to visit the father for over three years in circumstances which could not have been easy at the start, but he did so and did so with grace and determination. On behalf of the Court, I thank him for that hard work, which would not have been easy.
62. He is an impressive grandfather. He takes his grandchildren to sporting activities, including the child’s elder brother’s, and is proposing to engage the child in sports.
63. The maternal grandfather was criticised for not correcting the child in relation to the word ‘Lemon’. Given his evidence, he dealt with it in an appropriate way, and I make no criticism of him in that respect. He says the mother is a good mother and says that she does not sleep in. I generally accept his evidence as frank, but is coloured by his strong support of the mother and of his family. The maternal grandfather was not evasive. He was straightforward, and I accept his evidence as being reliable.
Now, I have not seen the parties, and I cannot be sure that something has not happened to the maternal grandfather, but that positive credit finding I give weight to on an interim basis and it satisfies me and supports my view that there is no case that the grandfather is a risk.
It also goes to the point that was made that the reason Mr Vincent has a relationship with X seems, frankly, not to be because of anything Ms Wells did, but because Mr Wells went out of his way to make sure that the Court’s Orders were complied with, and to make sure that even though Ms Wells might not have bothered, the maternal grandfather, day in, week in, year in, year out, did what was necessary to support the relationship.
I see no reason to think, then, that he would not continue to do so when he comes to Court saying he will do so and that he would comply with Court Orders. I think that it is unfortunate that time was stopped. Given what has happened with Z, I can understand, perhaps, that they were overly sensitive.
Accordingly, I see no risk there. In terms of X spending time with Mr Vincent, I see what was said by Justice Benjamin; I see what was said by the expert, although I give only limited weight to what was said in the expert report I have been provided of Dr F. I do not understand it was proposed that Mr Vincent was a risk. There is no suggestion, as I have said, that he is not abstinent and that he has not done a fantastic job, as Justice Benjamin recognised, of turning his life around with the help of his partner.
It is clear that his relationship with X is still a developing one. Indeed, with the assistance of Mr Wells, in particular, it is now at the point where X will start to spend time, if the existing Orders were to continue, with him at his own home once every two weeks. But that is not a tested relationship and it is a circumstance where X would be expected to be highly emotional at the moment. It is not a question of him being a risk in terms of intentionally hurting the child or even not being capable, but rather that this is a very great change to impose on a child who has just lost her mother.
Now, in terms of Z I understand that there were also existing Court Orders. It may well be that Mr Delmonte also has equal-shared parental responsibility; it is just not clear. From all the evidence of the parties, he has spent virtually no time with Z in the past six months and only limited time before that.
Now, there is a factual conflict which I cannot possibly decide today as to whether or not Ms Wells was effectively defeating the time with Orders for Z and whether or not Mr Wells and Ms Wells were involved in that. Although given the extent Mr Wells went to ensure that the Orders were complied with in respect of X it seems unlikely, but I cannot say. Nor can I say, as is suggested to me on the other side, that Mr Delmonte just did not take advantage of the Orders.
Either way, I do not think there is any suggestion that Mr Delmonte would intentionally hurt Z or would abuse him. It is not that kind of case, fortunately, once one takes out the material which was not pressed concerning Mr Wells. What we do have is an 11 year old with an autism spectrum disorder, and one of the things that we all know is that children who have autism are very resistant to change.
Now, he has just lost his mother, which is traumatic for any child, and now he is being removed to live with someone he has, even on Mr Delmonte’s evidence, a very limited relationship with in an entirely different city; away from the maternal grandparents who are the next closest people to him and with whom he has lived; away from both of his siblings with whom he has lived his whole life; away from the school which has been supporting him and the special support he has there.
As I said, Mr Delmonte suggested that this was Z’s decision. I do not accept that, no matter what he may have said at the time. Frankly, if Mr Delmonte wants to say, he thinks Z said to him, “Well, I would like to go with you,” and that is the same as him making an informed adult decision, then it does really raise a question as to Mr Delmonte’s understanding of child development and Z’s needs, and, in fact, that is probably the evidence most against him in that regard.
As I have said, it is not being suggested, as I understand it, that Mr Delmonte does not love Z or is a risk to him in the sense of actual abuse. I do note that we also have a complicating factor that both Mr Delmonte and Z are currently self-isolating because of having stayed at a hotel at D Town and the email requiring them to self-isolate has been tendered.
I think the primary issue in both of these cases is that it seems to me is the idea of moving a 9 year old and 11 year old with autism from the town they have been living in and from their existing school which provides the structure of existing teachers.
As I have said, I am proceeding upon the basis that neither Mr Wells or Ms Wells, nor Mr Vincent or Mr Delmonte, are risks to any of the children in terms of the kind of abuse this Court unfortunately has to deal with, physical or psychological. I note that the particular section 60CC(3) factors were not emphasised, see Banks & Banks, but I have to ask what do I think at the moment is likely, on the limited information I have, to be in the best interest of X, and of Z and also, to some extent, of Y although, as I have said, at 16½, and there is no suggestion of him not being competent, his decisions are probably for himself.

From the material I have, it seems to me that after their mother the children’s most consistent connection and attachment is likely to be with the maternal grandparents who have supported Ms Wells through her life. The younger children are at an age now where they are not quite in high school, and they have not quite perhaps reached the point where their friends, and teachers and other adults become more important to them than their family, but they are not far off it.
They have existing schools, and they have existing friends, and social networks and existing teachers, and all of those things provide structure. What they have lost, at the moment, is the most important structural feature of their life, which is their mother. To then take away from them their siblings, their school, their friends, their teachers, the town they are accustomed to living in, with Z, in particular, suffering as he does from autism, would just be terribly traumatic.
To place them with people who, although I have no doubt love them very much and want the best for them in Mr Vincent and Mr Delmonte, they do not have as deep relationships with and where that involves not just changing houses, but changing schools, changing doctors, losing access to their teachers and losing the kind of full-time access to their maternal grandparents and siblings, I think that that is unlikely to be good for them. To the extent to which there is a risk, I think the psychological risk involved in that is the risk that they face.
It is possible for people who mean well and want the best for children to have very different views about what is the best for them and, indeed, it is not uncommon. That does not mean that anyone is good or bad. It means that different people have different views about what is going to be best for the children. My job today is to make Orders because something has to happen until, perhaps, more evidence is collected.
I am satisfied that, taking into account all of these matters, that the best thing for the children would be for them to be together, living in Town F, and the way for that to be achieved for all three of them is that Orders be made for X to continue living with Mr Wells and Ms Wells, and for Z, when the COVID-19 restrictions have finished, when he gets his clear test result, to be returned to live with Mr Wells and Ms Wells.
Now, I also think it is important in respect of X that the process of her deepening her connection with Mr Vincent not be interfered with, having lost one of her parents. She has a routine which Mr Wells has been supporting. The Orders, as I understand it, and no one suggested the Orders were not going well, I think it would be tragic for X to now have that process thrown off the rails. The maternal grandparents, Mr Wells and Ms Wells, have committed to continue supporting that as, indeed, Mr Wells has for so many years.
I think that the best way forward for X is that she continue to live with Mr Wells and Ms Wells on the basis that they will facilitate the incremental increases in time with Mr Vincent Ordered by Justice Benjamin as if they were Ms Wells. I am troubled about whether I should make any Orders about parental responsibility at the moment. I was not addressed in great detail on that. I am reluctant to enter into that field at the moment.
I think that if I merely make Orders in respect of X that she live with the maternal grandparents, and otherwise the Orders will be as Justice Benjamin made them subject to the fact that the maternal grandparents will have to comply with the obligations Ms Wells had. That is probably the safest approach for the moment.
In terms of Z, we do not know what any existing Orders are, but I think the most appropriate way is for Z to return to live with the maternal grandparents and his siblings so he can be returned to his school. Rather than trying to retain a new psychologist and a new set of doctors he can return to people who have been caring for him so well.
I am concerned if there were Orders for Z in place and those Orders were not being complied with for one reason or another, and I am not in a position to decide why not, but Mr Delmonte clearly wants to engage with Z now. There is no doubt that it is in Z’s best interests to, assuming it was Orders made by consent and Ms Wells would have agreed it was in his bests interests, and the Court generally assumes that it is in his best interests to have a good relationship with Mr Delmonte.
I will Order that Z return to live with the maternal grandparents, but I will hear submissions about what time should take place with Mr Delmonte. Or if the parties are not in a position to deal with that today and if Mr Delmonte wants to go and talk to a lawyer, I would be willing to list the matter again later in the week, perhaps, so the parties can tell me that they have come to an agreement or, if need be, I can make some Orders about that.
I will Order that an Independent Children’s Lawyer be appointed, and I will recommend to the Legal Aid Commission that they appoint, if possible, the same person who was the Independent Children’s Lawyer acting in respect of X previously, as that person will have a good knowledge of the issues. I think it was Legal Aid NSW internally.
What I propose is that I will wait until these Orders are given effect, and then the parties can approach me and I will probably transfer the matter to the Family Court of Australia for future management, given the complexity of the issues and the likely length of the proceedings.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Associate:

Date: 29 July 2020