FAMILY LAW – Children – application for parenting orders – twins aged 3 – where the mother has significant disabilities (including postural imbalance and a staggering gait) resulting from brain injuries caused, in part, by a childhood cerebral haemorrhage – where twins placed with the applicant (who was the maternal uncle's de facto partner) when they were aged approximately 5 weeks – where twins have lived with the applicant since that time – where the twins' father has had minimal involvement in their lives – where the mother lives in South East Queensland and the applicant lives (with the twins) near Parramatta, New South Wales – where the mother is spending time with the twins on a regular basis – where the mother resents the applicant and asserts that she has "stolen" the twins from her – whether the mother is physically capable of caring for the twins without 24 hour per day, seven day per week assistance (or something close to that level of assistance) – where the applicant has cared for the twins very well – where the twins have "bonded" with the applicant – where removing the twins from the applicant and placing them with the mother would cause the twins to be involved in a complex care arrangement (which would include family day care, outside the mother's home, for six days each week) – where, in any event, placing the twins with the mother could result in the Queensland Department of Child Safely taking the twins into care – where the independent children's lawyer strongly supports the applicant's case to the effect that twins should continue to live with her – whether the mother and the applicant should have equal shared parental responsibility for the twins – consideration of section 60CC and other factors in the light of a complex factual situation, including the mother's disabilities and the applicant's status as a biological "stranger" to the twins.
FEDERAL MAGISTRATES COURT OF AUSTRALIA
Family Law Act 1975 (Cth), Part VII ss.4(1), 60B, 60B(1), 60B(2), 60B(3), 60CA, 60CC, 60CC(1), 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(4), 60CC(4)(c), 60CC(4A), 60CC(5), 61DA, 61DA(2), 61DA(3), 61DA(4), 64B(2), 64B(3), 65D(1), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC, 65DAE
Federal Magistrate Court Rules 2001(Cth), Div 15.2
Family Court Rules 2004 (Cth), Part 15.5
AMS v AIF  HCA 26; (1999) FLC 92-852
Davis & Spring (2007) FamCA 1149
Dennett & Norman (2007) FamCA 57 (FCoA FC)
Goode  FamCA 1346; (2006) FLC 93-286
Holmes (1988) FLC 91-918
Hungerford & Tank (2007) FamCA 637
Kire & Jackson & Grubb (2007) FamCA 1646
M & S (2006) FamCA 1408
Mazorski & Albright  FamCA 520; (2008) 37 Fam LR 518
McLeay (1996) FLC 92-667
Mills & Watson  FMCAfam 2; (2008) 39 Fam LR 52
Moose (2008) FLC 93-375
Oscar and Traynor (2008) FamCA 95
Pender & Haywood  FamCA 1526
Re Evelyn (1998) FLC 92-807
Re: F – Litigants in Person Guidelines  FamCA 348; (2001) FLC 93-072
Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334
Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321
Rice v Miller  FamCA 87; (1993) FLC 92-415 (FCoA FC)
Saxena  FamCA 588; (2006) FLC 93-268
Taylor & Barker (2007) FamCA 1246
West (2007) FamCA 546
16 – 17 November 2006
14 – 18 May 2007
1 – 5 October 2007
Date of Last Submission:
16 November 2008
Counsel for the Independent Children’s Lawyer:
Mr George (16 – 17 November 2006), Ms Gillies
Solicitor for the Independent Children’s Lawyer:
Tiyce & Partners Lawyers
(1) MS TOMKINS (“Ms Tomkins”) and MS WARD (“Ms Ward”) have equal shared parental responsibility for the children [X] and [Y], both born in 2005.
(2) The children live with Ms Tomkins.
(3) The children spend time with MR WARD (“Mr Ward”) as agreed and arranged between Ms Tomkins and Mr Ward.
(4) The children spend time with Ms Ward as agreed and arranged between Ms Tomkins and Ms Ward, and failing agreement as follows:
- (a) except in the month of January in each year, on the weekends of the first and third Friday in each month, from 12 noon on Friday to 5 p.m. on Sunday;
- (b) from 2 p.m. on 24 December until 6 p.m. on 26 December in 2009, and in each alternate year thereafter;
- (c) for a period of 7 consecutive days in January 2009, such period to be agreed between Ms Tomkins and Ms Ward;
- (d) from 9 a.m. on the second Monday in January until 9 a.m. on the third Monday in January in each of the years 2010 and 2011;
- (e) notwithstanding any other provisions of these orders, from 9 a.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each alternate year, commencing 2010;
- (f) from 3 p.m. on 27 November until 3 p.m. on 28 November in 2009, and in each alternate year thereafter;
- (g) from 3 p.m. on 28 November until 3 p.m. on 29 November in 2010, and in each alternate year thereafter; and
- (h) upon the children commencing school, and subject to paragraph 5 below, one half of all school holidays, and being the first half of such holidays in 2011 (and in each alternate year thereafter) and the second half of such holidays in 2012 (and in each alternate year thereafter).
(5) Upon the children commencing school, the spend time arrangement referred to in paragraphs 4(a) and (b) be suspended during all school holidays, and do resume after such holidays in an unbroken cycle as if such holidays had never occurred.
(6) Notwithstanding any other provisions of these orders (save for paragraph 4(e) above), Ms Ward's time with the children be suspended, and the children be returned to live with Ms Tomkins at the following times:
- (a) from 2 p.m. on 24 December until 6 p.m. on 26 December in 2010, and in each alternate year thereafter;
- (b) from 3 p.m. on 27 November until 3 p.m. on 28 November in 2010 (and in each alternate year thereafter) and from 3 p.m. on
28 November until 3 p.m. on 29 November in 2009 (and in each alternate year thereafter); and
- (c) from 9 a.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each alternate year, commencing 2009.
(7) In relation to decisions regarding long term issues affecting the children – excluding the baptism, and excluding medical emergencies (which are provided for by separate orders herein):
- (a) All joint decisions must be –
- (i) evidenced in writing; and
- (ii) signed by both Ms Tomkins and Ms Ward.
- (b) If Ms Tomkins and Ms Ward are unable to come to a joint decision, then, prior to filing any further application to the court –
- (i) they must both attend (by telephone or in person) upon a recognized dispute resolution practitioner in the Newcastle area; and
- (ii) they must both attend upon the said dispute resolution practitioner at the same time.
(8) The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to come into contact or communicate with MR RICHARDS.
(9) MR RICHARDS is hereby restrained by injunction from coming into contact or communicating with the children or either of them.
(10) The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to come into contact with Mr P.
(11) The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to visit the home of MR W and/or from allowing MR W to transport the children (or either of them).
(12) In the event that the children (or either of them) come into contact with MR W, Ms Tomkins and Ms Ward (and their servants and agents) must cause the children to be removed from his presence immediately if he becomes intoxicated or aggressive (including verbally aggressive).
(13) Ms Ward’s time spent with the children (or either of them) – including overnight periods of time spent – must be supervised at all times by:
- (a) Ms P; or
- (b) Ms D; or
- (c) Ms T; or
- (d) any other supervisor agreed by the parties in writing.
(14) Unless otherwise agreed in writing between Ms Tomkins and Ms Ward, all overnight periods of time spent by Ms Ward with the children (or either of them) must be spent at the home of:
- (a) Ms P; or
- (b) Ms D; or
- (c) Ms Ward.
(15) In the event that Ms Ward resides in Brisbane/[S], then Ms Tomkins must be responsible for delivering the children to and collecting them from the home of Ms P:
- (a) on the first weekend in April; and
- (b) on the first weekend in August; and
- (c) for time spent with Ms Ward pursuant to paragraph 4(c) and (d) above; and
- (d) for the Christmas holiday periods pursuant to paragraph 4(h) above.
(16) For all other changeovers, Ms Ward must be responsible for collecting the children from Ms Tomkins’ home at the commencement of her time and Ms Tomkins must be responsible for collecting the children from Ms D’s home of at the conclusion of the time.
(17) If Ms Ward will not be spending time with the children in New South Wales pursuant to any of the provisions of these orders, then Ms Ward must inform Ms Tomkins of that fact, in writing, at least seven days before the commencement of such spend time period.
(18) The parties, their servants and agents be and are hereby restrained by injunction from:
- (a) abusing, insulting, belittling, rebuking or otherwise denigrating Ms Tomkins, Mr Ward, any supervisor, Ms Ward or
MR RICHARDS; and
- (b) discussing these proceedings,
in the presence or hearing of the children (or either of them), and from permitting any other person to do so.
(19) Ms Tomkins and Ms Ward must advise each other, in writing, at least
7 days before any change to their residential address, mobile telephone or landline number.
(20) This order is sufficient authority for each of Ms Tomkins and Ms Ward to obtain information regarding the children (or either of them) from any school, child care facility, medical practitioner, sporting club or entity, therapeutic consultant or third party that the children (or either of them) might attend for educational, psychological, sporting or medical purposes or activities.
(21) Ms Tomkins and Ms Ward must advise each other, in writing, at least
7 days before any scheduled medical, psychological or therapeutic appointment that both or either of the children are scheduled to attend, and both be at liberty to attend same.
(22) In the event that either child requires emergency medical treatment,
Ms Tomkins and Ms Ward must each advise each other, as soon as practicable, of such requirement, and include details of the attending medical practitioners, their contact details and the condition for which treatment is required.
(23) At least 3 months prior to the children being enrolled in any educational facility, Ms Tomkins must provide Ms Ward with details of the facility, proposed enrolment details, and the contact details of the facility.
(24) Ms Tomkins and Ms Ward must maintain a communications book, which shall pass with the children.
(25) The children be baptised in the Roman Catholic faith, unless otherwise agreed in writing between the parties.
(26) Ms Ward be responsible for taking all steps to give effect to paragraph 25 above, and must provide Ms Tomkins with 28 days notice of the date, time and location of that baptism, and Ms Tomkins and her invitees be at liberty to attend and participate as appropriate in the ceremony, and any celebration.
(27) Ms Tomkins and Ms Ward must cause each of the supervisors to be furnished with a copy of these Orders prior to them supervising any period of time.
(28) The independent children’s lawyer do provide to the Department of Child Safety, Queensland, and the Department of Community Services, New South Wales, a copy of these Orders as soon as practicable.
(29) In these orders, a requirement that notice be given in writing can be adequately satisfied by the sending of an SMS text message or e-mail.
(30) All extant applications otherwise be dismissed.
AND THE COURT NOTES:
(31) Pursuant to ss.65DA(2) & 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 the Attachment and these particulars are included in these orders.
REASONS FOR JUDGMENT
- This case is about the living arrangements for twins who are now three years of age. Their names are [Y] and [X], and they were born in 2005.
- The primary question for determination is whether the twins should live with their mother, Ms Ward, or with Ms Tomkins (who is the former de facto partner of Ms Ward's brother, Mr Ward).
- The twins have lived with Ms Tomkins since they were approximately 5 weeks old. She is their primary carer and primary attachment, and she looks after them well.
- Ms Ward has a number of disabilities caused by brain injuries resulting from a cerebral haemorrhage and later brain tumour suffered in childhood. She also suffered from hydrocephalus. Among other things, Ms Ward now has significant ataxia. In other words, her ability to coordinate her movement is impaired – leading to postural imbalance and a staggering, unsteady gait. She also experiences debilitating headaches.
- Given the nature of Ms Ward’s disabilities, much of the case focused on the question of whether she is physically capable of caring for the twins if she does not have 24 hour per day, seven days per week assistance (or something close to that level of assistance). Without going into unnecessary detail at this stage, I have no doubt that if the twins were to be placed in Ms Ward's care, and if she did not have very significant support on a very regular basis, then, unfortunately, they would be exposed to an unacceptable risk of harm.
- The twins’ father is Mr Richards. Mr Richards involved himself in the proceedings to some extent (including by giving evidence), but, generally speaking, he was prepared to simply support Ms Ward's case and not otherwise seek to be heard. He does not live with Ms Ward, but the current nature of their relationship is otherwise unclear.
- Ms Ward lives in [S], Queensland with [Z] (who is her son from a previous relationship). [Z] was born in 1995.
- The twins live with Ms Tomkins in [C], near Parramatta, New South Wales. Mr Ward lives nearby, and sees Ms Tomkins and the twins very frequently.
- Ms Tomkins also has children from a previous relationship, but they are now adults. Indeed, Ms Tomkins is a grandmother.
- Mr Richards, too, has a child from a previous relationship. His name is [M], he is 16 years old and he lives with Mr Richards.
- Ms Ward presents as angry, bitter and frustrated. In many ways, she feels that Ms Tomkins has “stolen” the twins from her. To put it bluntly, she wants them back (although the reality is that the twins have never actually lived in Ms Ward’s sole care). In my opinion, there is no valid reason for Ms Ward to feel the way that she does towards
Ms Tomkins (although I certainly understand and accept her very strong desire to have the twins live with her, and to have the opportunity to care for them on a full time basis). Unfortunately,
Ms Ward and some of those who support her have simply lost their sense of proportion. They have also shifted their focus from what might be considered to be in the twins’ best interests to what might be considered to be in Ms Ward’s best interests. They see conspiracies where none exist, and they seem unwilling to give (or incapable of giving) credit where it is due. That is not to say that Ms Tomkins could not have done more to promote Ms Ward’s relationship with the twins. She could indeed have done more, but she has nevertheless done a great deal to promote the relationship, and she has done so in extremely difficult circumstances.
- The cast in this very sad case is large. It includes Ms Ward's mother, Ms P (who clearly loves Ms Ward, and is proud of her independence, but feels that she must support Ms Tomkins' case), Ms Ward's aunt,
Ms D, the Queensland Department of Child Safety (QDOCS), an experienced family report writer, friends and supporters of Ms Ward (professional and otherwise), medical practitioners, and an occupational therapist whose evidence was so obviously flawed and lacking in balance that counsel for the Independent Children’s Lawyer submitted (with every justification) that it "slid into the realm of farce".
- For the reasons set out below, I have decided that the twins should continue to live with Ms Tomkins.
- That being the case, the next question for determination concerns the amount of time that the twins should spend with Ms Ward, and how that time should be structured. Although the law now refers to a child “spending time” with a person with whom the child does not live,
I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
- I have concluded (also for the reasons set out below) that the twins should have as much contact with Ms Ward as is practicable, and I have prepared draft proposed orders to give effect to that conclusion.
- The above summary comprises no more than a superficial introduction. I shall do my best to identify and resolve the more significant of the various issues in dispute between the parties elsewhere in these Reasons.
- For the sake of clarity (and brevity) –
- I shall refer to the parties by their first names (and I mean them no disrespect by doing so);
- I shall refer to the independent children's lawyer as the ICL;
- I record, at this stage, that Ms Tomkins was represented by
Ms McDiarmid of counsel, Ms Ward was represented by
Ms Kirkman-Scroope of counsel and the ICL was represented by Ms Gillies of counsel – and that Mr Ward and Mr Richards were self represented; and
- I also record that all counsel prepared written submissions pursuant to directions made at the conclusion of the trial, and that I have referred to Ms McDiarmid's submissions as WS(L), to
Ms Kirkman-Scroope's submissions as WS(S) and Ms Gillies’ submissions as WS(ICL).
- I would add that the trial occupied a total of 11 days. On the first two days (in November 2006), Ms Ward was represented by Mr Battley of counsel and the ICL was represented by Mr George of counsel.
Ms McDiarmid appeared for Ms Tomkins throughout the trial.
Mr Ward and Mr Richards were self represented
- Given that Mr Ward and Mr Richards were self-represented, I was very conscious of the obligation upon the Court to provide a fair trial – for all parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was indeed fair. In summary:
- Procedural fairness was afforded to all parties.
- The “mechanics” of the trial, and (for example) the right of the parties to cross-examine witnesses, were explained to
Mr Richards and Mr Ward.
- Other relevant procedures were explained to them as those issues arose.
- I explained to them that they had the right to object to inadmissible evidence, and explained to them – in very broad terms – the types of evidence that might be considered inadmissible.
- Where appropriate, I attempted to clarify the substance of their submissions.
- Where appropriate, I took other steps as authorised by the
Full Court in Guideline #9 in paragraph 253 of the decision in
Re: F – Litigants in Person Guidelines.
- In Saxena  FamCA 588; (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph “were no more than the name implies” and that they “derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on”.
His Honour added that the Court must be concerned with “the spirit rather than the strict letter of the guidelines”.
- In the present case, Mr Ward was present throughout the trial, whilst Mr Richards “drifted in and out”. I have not the slightest doubt that both of them fully understood exactly "what was going on" at all times.
Witnesses and relevant persons
- A large number of people were involved in these proceedings (directly or indirectly). It follows that a short overview is appropriate:
- I have already referred to Ms Ward, Mr Richards, Ms Tomkins, Mr Ward, [Z], [M] and the twins.
- Ms P is Ms Ward's mother. Of course, she is also Mr Ward's mother, and the twins’ grandmother. Ms P swore two affidavits, and gave evidence on 15 May 2007.
- Mr W is Ms Ward's father. He did not swear an affidavit, and did not give evidence in the proceedings.
- Mr T and Mr Z are Ms Ward's (and Mr Ward's) brothers. Neither swore an affidavit, and neither gave evidence in the proceedings.
- Ms D is Ms Ward's aunt. She is Mr W's sister. She lives in Newcastle, New South Wales. Ms D and her daughter Ms T have supervised Ms Ward's time with the twins. Ms D swore an affidavit, and gave evidence on 4 October 2007.
- Ms T is Ms D's daughter, and Ms Ward's first cousin. She appears to be a close friend of Ms Ward. Although Ms T seems to have had significant involvement in certain of the events forming the subject of evidence during the course of the trial, she did not swear an affidavit and did not give evidence.
- Mr P is a close friend and supporter of Ms Ward. He is a part-time taxi driver. He described himself as [Z]’s "surrogate dad" and said that he and Ms Ward are "virtually like a family". Mr P and Ms Ward lived in the same house for approximately 4 years after [Z] was born. They may or may not have lived together prior to that time. Mr P swore an affidavit, and gave evidence on 4 October 2007.
- Anthony Scott Robinson is a psychologist, and an experienced family report writer. He prepared a family report in this matter dated 9 May 2007. Mr Robinson gave evidence on 4 October 2007.
- Dr R is Ms Ward's treating neurologist. He did not swear an affidavit, but gave evidence on 17 May 2007.
- Dr D is a consultant paediatrician based in Woollahra, New South Wales, who saw the twins and prepared reports relating to them in September 2007. He did not swear an affidavit, but gave evidence (by telephone) on 4 October 2007.
- Dr P is a neurological surgeon. It appears that Ms Ward has been under Dr P's neurological care for some 15 years, and that he is aware of her neurological condition and the disabilities that she suffers. Dr P did not swear an affidavit and was eventually subpoenaed to give evidence. He failed or refused to respond to the subpoena. As a result, he did not give evidence.
- Ms G is an occupational therapist. She provided reports regarding Ms Ward's physical and functional abilities. She swore two affidavits, and gave evidence on 5 October 2007.
- Ms M (known as Ms M) is a social worker, and an advocate and support worker for Ms Ward. She is the manager of Gold Coast Advocacy Inc. She swore an affidavit, and gave evidence on
3 October 2007.
- Ms J is a social worker. She has known Ms Ward for a long time. At the time that she swore her affidavit (on 13 November 2006), she was employed with Blue Care in [L], Queensland. She was Ms Ward's social worker from May 2006 until she left her employment with Blue Care. Ms J gave evidence on 5 October 2007.
- Ms F is a Child Safety Officer (and currently acting team leader) with the [L] Child Safety Service Centre of QDOCS. She did not swear an affidavit, but gave evidence on 3 October 2007.
- Although affidavits were provided by certain other witnesses, they did not give evidence (either because they were not required for cross examination or for other reasons). The contents of those affidavits were not referred to by counsel in their written submissions and, although I have read the affidavits, I regard the evidence contained in them to be of marginal relevance only.
- In these Reasons, all statements of fact comprise findings of fact.
- Ms Ward was born in May 1966. She is now 42. Mr Richards was born in January 1958. He is now 50. They commenced a relationship in 2003. It is difficult to identify the current nature of their relationship. They may or may not be separated.
- Mr Richards has been violent to Ms Ward on at least one occasion.
- [Z] (Ms Ward's first child) was born in July 1995. He is now 13. I do not know who his father is, although Mr P says that he regards himself as [Z]'s "surrogate father".
- The twins were born in November 2005. They are now three.
- Mr Ward is a [occupation omitted], earning approximately $700 per week after tax. He is aged approximately 39 or 40. It would appear that he had very little contact with Ms Ward from when he was approximately 17 years old until shortly before the twins were placed in Ms Tomkins' care.
- Mr Ward has two children from a previous relationship, [L] (aged approximately 9) and [G] (aged approximately 6). They live with their mother in Newcastle. Unfortunately, at the time that Mr Ward gave evidence in May 2007 he had not seen the girls for approximately
12 months – because of a dispute with their mother. I accept, however, that he wishes to have a relationship with them.
- Ms Tomkins was born in February 1965. She is now 43. She has two children from a previous relationship, [S] and [B] (now aged approximately 22 and 20 respectively). [S] and her husband have a child of their own.
- Ms Tomkins is not engaged in paid employment.
- Ms Tomkins and Mr Ward met in or about 2002 and commenced a relationship approximately 3 months later.
- The twins commenced living with Ms Tomkins in January 2006, when they were approximately 5 weeks old. Although the circumstances surrounding the placing of the twins in Ms Tomkins' care were in dispute, it is fair to say that Ms Ward agreed to the arrangement at the time. Had she not agreed, the likelihood is that the twins would have been taken into care by QDOCS.
- Ms Tomkins and Mr Ward ceased living together around the time that the twins commenced living with Ms Tomkins. They spend a great deal of time together, however, and have discussed the possibility of getting married in the not too distant future. Mr Ward sees the twins every afternoon (or almost every afternoon) and every weekend when they are not with Ms Ward. He assists Ms Tomkins in caring for them.
- Ms Tomkins lives in a rented three-bedroom house in [C], near Parramatta. She has lived in the property for approximately 20 years and believes that she is able to stay there indefinitely. She receives a total of approximately $750 per fortnight from QDOCS (or from the New South Wales Department) to assist her with the care of the twins.
The family report
- Mr Robinson (the report writer) saw Ms Ward, Ms Tomkins, Mr Ward, [Y], [X] and [Z] on 20 April 2007. He spoke with Ms F and Ms P not long afterwards.
- At that time, Mr Robinson recorded that Mr Richards had had minimal contact with the children and had not played an active role in their care. Mr Richards did not attend the interviews for the purpose of the preparation of the report. Ms Ward told Mr Robinson, however, that she had an ongoing relationship with him.
- Mr Robinson described the twins as –
- ... well groomed, healthy and happy, though rather shy children of normal physical development. There were no indications of abuse or neglect.
- Mr Robinson observed that the twins were relaxed and comfortable in their interactions with Ms Tomkins and Mr Ward. They took turns sitting on Ms Tomkins' knee. They enjoyed playing with both
Ms Tomkins and Mr Ward.
- Mr Robinson described the twins’ relationship with Ms Ward as follows:
- When the children separated from (Ms Tomkins) and entered the room in which the observed play session was to be conducted with (Ms Ward), they immediately became very distressed. They both started crying quite loudly and (Ms Ward) was unable to calm them down or engage them in play.
- Eventually, as the children were unable to settle, the report writer requested (Ms Tomkins) to join the children in the play session with (Ms Ward), and when (Ms Tomkins) entered the room, the children immediately ran to her and stop crying.
- They continued to cling to (Ms Tomkins) for a considerable length of time despite (Ms Ward's) attempts at engaging them in play and her efforts to encourage them to interact with her. At times the children appeared to become even more fearful of (Ms Ward) when she made these efforts to engage them in play. She appeared to be somewhat insensitive to their need for personal space and to their reactions in withdrawing further from her when she attempted to come very close to them.
- ... there was minimal interaction between the children and
- Under the heading "Assessment", Mr Robinson wrote:
- Both children appeared to have formed a close attachment to
(Ms Tomkins). They also appeared to be relaxed and comfortable in their relationship with (Mr Ward).
- The children appeared to have virtually no attachment to
(Ms Ward) and appeared to even be fearful of her. Additionally, (Ms Ward) displayed little ability to encourage them to relax with her and engage in play with her. However, there were indications from the play session observations that they could learn to become more relaxed and comfortable with her with
(Ms Tomkins’s) encouragement and perhaps with more frequent contact with her.
- The quality of care that (Ms Tomkins) is providing the children appears to be of a high level. ...
- Both children appeared to have formed a close attachment to
- I do not propose to discuss the family report in any greater detail. It speaks for itself.
- In the broadest of broad terms, Ms Ward seeks orders to the effect that the twins live with her. The actual orders sought appear to be those contained in her amended response filed on 27 November 2006. There is no need for me to set out the orders in these Reasons. Suffice it to say, however, that they leave open the question of the twins spending time with Mr Richards. They also provide for the twins to spend very limited time with Ms Tomkins and Mr Ward. Further, and as Ms Gillies observed in her written submissions, there is no requirement in the orders for Ms Ward to have any assistance during the time that the twins are with her; nor is there any provision for transitional orders designed to ease the twins’ movement from Ms Tomkins' care to
Ms Ward's care.
- Ms Gillies submitted, and I accept, that Ms Ward's failure to particularise appropriate transitional arrangements for the twins from one household to the other "throws doubt on Ms Ward's capacity to look at the situation in a child focused manner", especially when regard is had to Mr Robinson's evidence relating to the care that should be taken in order to effectively manage such a transition.
- At one point in the proceedings, it was suggested that Ms Ward might relocate to Newcastle, but it appears that she has now effectively abandoned this proposal.
- The orders sought by Ms Tomkins and Mr Ward are those contained in a minute attached to Ms McDiarmid's closing submissions. In broad terms, they provide for Ms Tomkins to have sole parental responsibility for the twins, and for them to continue to live with her. The orders also provide for the twins to spend time with Mr Ward as agreed between Ms Tomkins and Mr Ward. In relation to contact between Ms Ward and the twins, the orders provide for the same to occur on
two weekends in each month, and at other times as defined. Contact is to be increased after the twins start school.
- Ms Tomkins also proposes that Ms Ward's time with the twins be supervised by Ms P, Ms D, Ms T or other agreed supervisor, and that all overnight periods be at the home of either Ms P or Ms D.
- Leaving aside mechanical-type orders, Ms Tomkins also proposes that:
- the twins not be brought into contact with Mr Richards;
- the twins’ contact with Mr W be controlled;
- she and Ms Ward keep each other advised of their address and contact details;
- she advise Ms Ward prior to any scheduled medical or similar appointment that the twins or either of them are/is to attend, and Ms Ward be at liberty to attend the appointment;
- she advise Ms Ward immediately in the event that either child requires emergency medical treatment, supplying details of the need for such treatment;
- she give Ms Ward at least three months notice before enrolling the twins in any educational facility, giving details of the proposed enrolment; and
- Ms Ward arrange for the twins to be baptised in the Roman Catholic faith (unless otherwise agreed), and Ms Tomkins and her invitees be at liberty to attend and participate as appropriate.
- Mr Richards did not seek any orders.
- Mr Ward joined in the orders sought by Ms Tomkins.
- The orders sought by the ICL are contained in a minute handed up by Ms Gillies on 5 October 2007. In broad terms, they are as follows:
- Ms Tomkins is to have sole parental responsibility for the twins;
- the twins are to live with Ms Tomkins;
- the twins are to spend time with Mr Ward as agreed with
- the twins are to spend time with Ms Ward for at least the following periods:
- the first complete weekend in each calendar month (from
9 a.m. Saturday to 5 p.m. Sunday);
- from 2 p.m. on 25 December to 2 p.m. 26 December in 2007 and each alternate year thereafter;
- in 2008 and each alternate year thereafter, from 9 a.m. on
5 January until 5 p.m. on 7 January, and from 9 a.m. on
9 January until 5 p.m. on 11 January (such periods to occur at Ms P's home unless otherwise agreed); and
- from 9 a.m. on the Saturday immediately preceding Mother's Day until 5 p.m. on Mother's Day in 2008 and each alternate year thereafter;
- the first complete weekend in each calendar month (from
- the twins are to spend the entire weekend of Mother's Day with Ms Tomkins in 2009, and in each alternate year thereafter;
- in the event that Ms Ward continues to live in the Brisbane/[S] area, Ms Tomkins is to ensure that the twins are delivered to
Ms Ward at Ms P's home on (at least) the first weekend in January, April, July and October in each year;
- the twins are to spend no time with Mr Richards (and injunctions are to be put in place to ensure that he has no contact with them);
- injunctions are to be put in place to ensure that the twins are not brought into contact with Mr P;
- the twins’ contact with Mr W is to be controlled;
- for the purposes of spending time with the twins in New South Wales, Ms Ward must collect them from Ms Tomkins' home at the commencement of contact and Ms Tomkins must collect them from Ms D's home at the conclusion of contact;
- Ms Ward is to confirm with Ms Tomkins in writing, at least seven days before any contact period in New South Wales, that she will in fact exercise such contact, and in the event that Ms Ward fails to provide such written advice the relevant contact period is to be suspended (unless Ms Tomkins otherwise agrees in writing);
- Ms Ward's contact is to be supervised at all times by Ms P, Ms D, Ms T or other agreed supervisor, and all overnight contact periods are to be spent at the home of either Ms P or Ms D (unless otherwise agreed);
- all parties are to be restrained by injunction from denigrating each other or the relevant supervisor and from discussing these proceedings with or in the presence or hearing of the twins, and from permitting any other person to do so;
- Ms Tomkins and Ms Ward are to keep each other advised of their address and contact numbers;
- Ms Tomkins and Ms Ward are to provide each other with any necessary authorisation needed to obtain information from any school, child care facility, medical practitioner, therapeutic consultant or third party that the children might attend for educational, psychological or medical purposes;
- Ms Tomkins is to keep Ms Ward advised of any scheduled medical or similar appointments, and Ms Ward is to be at liberty to attend the appointments;
- Ms Tomkins is advise Ms Ward as soon as practicable if either of the twins requires emergency medical treatment;
- Ms Tomkins is to provide Ms Ward with at least three months notice of the children's enrolment in any educational facility;
- the twins are to be baptised in the Roman Catholic faith, with the relevant arrangements to be made by Ms Ward, but with
Ms Tomkins having the right to attend and participate as appropriate; and
- Ms Tomkins and Ms Ward are to maintain a communications book which is to pass with the twins.
- The ICL’s minute also contains certain mechanical or procedural orders.
- I emphasise that I have not reproduced the precise terms of the orders sought by the parties. I have simply referred to them in summary form. The fundamental issue, however, is whether the twins live with
Ms Tomkins or with Ms Ward and, if they live with Ms Tomkins, the amount of contact that they should have with Ms Ward and any relevant safeguards.
- Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the FLA. Much of Part VII reflects comprehensive amendments to the pre-existing law, which amendments came into effect on 1 July 2006.
- The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode  FamCA 1346; (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
- Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).
- If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.
- As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
- In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
- The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
- The objects of Part VII are:
... to ensure that the best interests of children are met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
- The principles underlying these objects are:
... that (except when it is or would be contrary to a child's best interests):
children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
parents should agree about the future parenting of their children; and
children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
- Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
- “maintain a connection” with and “develop a positive appreciation” of it; and
- be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).
- Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are met, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests. The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
- The primary considerations are set out in section 60CC(2). They are:
- the benefit to the child of having a meaningful relationship with both of the his or her parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- The additional considerations are set out in section 60CC(3). They include:
- any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
- the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
- the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
- the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
- the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
- the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
- the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
- in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
- the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
- any relevant family violence, or family violence order;
- 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"; and
- any other fact or circumstance that the court considers relevant.
- Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated. One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.
- The Full Court in Goode summarised the above process as follows:
- ... in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration ... and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
- Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.
- When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
- The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.
- In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.
- Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect. If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time" with each parent would be both reasonably practicable and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.
- The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the
Full Court said:
- ... (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
- The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".
- In Mazorski & Albright, Brown J dealt with the “additional considerations” (in section 60CC(3)), prior to dealing with the primary considerations (in section 60CC(2)). In Moose, Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under section 60CC(2) if it first considers and makes findings about relevant factors under section 60CC(3)
- Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.
- The relevant steps (as modified for a final hearing) are as follows:
- Identify the parties’ competing proposals.
- Identify the issues in dispute in the proceedings.
- Make relevant findings in relation to the facts.
- Consider the relevant section 60CC factors and (if possible) make findings about them.
- Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
- If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
- If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
- If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent – unless (in turn) substantial and significant time would also be either:
- contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC; or
- It should be borne in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).
- If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).
- The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect ─ although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
- Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration", and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.
Ms Tomkins is not one of the twins’ parents
- No counsel suggests that Ms Ward is to be preferred to Ms Tomkins as a carer for the twins simply because she is their mother and
Ms Tomkins is not related to them. Re Evelyn (1998) FLC 92-807 was cited for the proposition that a biological parent does not stand in any preferred position, and that that fact does not in any way impinge upon the principle that the best interests of the children are paramount.
Principal issues for consideration
- On the second day of the trial (17 November 2006), I was provided with a document headed "List of Issues Identified by the ICL”. The document was prepared by Mr George (who was then counsel for the ICL) and accepted as accurate by Ms McDiarmid. Minor amendments were made by Mr Battley (who was then counsel for Ms Ward).
Mr Battley then accepted the document (as amended) as accurate.
- The issues identified in the document are as follows:
- Capacity of Ms Tomkins to provide for the emotional, psychological and physical needs of the children. Mr Battley added the following: Capacity of the parties to provide for the needs of the children, including emotional and intellectual needs.
- Capacity of Ms Tomkins to promote a relationship between the children and the parents. At issue is whether Ms Tomkins has taken all steps possible to promote an appropriate relationship between the parents and the children.
- The nature of the relationship between Ms Tomkins and Mr Ward.
- The capacity of Ms Ward to provide for the emotional, psychological and physical needs of the children. At present, the parties are at issue as to whether Ms Ward has the capacity to provide for these needs.
- Ms Ward's physical and psychological health and how this will impact on her capacity to parent.
- The nature of the relationship between Ms Ward and
Mr Richards, including issues of domestic violence.
- [Z]'s current physical and emotional state, his relationship with Ms Ward and others and the impact of all this considering his relationship with the twins.
- Ms Ward's capacity to continue parenting [Z] and her capacity to then assume the care of the twins.
- The capacity of each party to promote a relationship between the children and their extended family. Mr Battley added the following: "Disagree that this issue should include the words 'their extended family'".
- The practical difficulty associated with Ms Ward and/or
Ms Tomkins spending time with the children.
- The effect of change in the long and short term upon the children of being separated from their primary carer.
- According to Ms Gillies, the principal issues at trial were the following:
- Ms Ward's physical ability to look after the twins.
- The psychological effect of severing the twins from their primary attachment figure and placing them into a home where they will be exposed to a multitude of different carers and people on a daily basis.
- Ms Ward's ability to provide for the emotional and intellectual needs of the twins.
- Ms Ward's ability to protect the twins from family violence and abuse.
- Ms Ward's ability to prioritise the twins’ needs above her own.
- I have done my best to deal with all relevant issues (however defined) in these Reasons.
Ms Ward's physical ability to care for the twins
- According to Ms Kirkman-Scroope, the question of whether or not
Ms Ward is physically capable of caring for the twins comprises the principal issue in the proceedings. She cites the following passage from Ms Tomkins' evidence:
- Walters FM: If by some miracle, Ms Ward were to wake up tomorrow and be physically fit ... sound in body and mind ... and without the physical problems that she has encountered in her life, and now suffers from, I imagine on that basis and if that were to occur, you wouldn't be arguing that the children should (not) be returned to her full-time care, or would you be?
- Ms Tomkins: No, I wouldn't be, your Honour. I wouldn't be sitting here today if Ms Ward was capable of doing that. ... If Ms Ward was capable of taking care of her children, QDOCS would never have said that they were coming to take them in care and I would never have given up my life to rear the children.
- Both Ms Ward and her mother, Ms P, provide interesting histories of Ms Ward's medical problems in their affidavit material. For example, Ms P describes Ms Ward's medical and developmental history (leading up to the time that Ms Ward gave birth to [Z]) in paragraphs 8 to 33 of her first affidavit -- commencing with the occasion when Ms Ward collapsed at school, having suffered a cerebral haemorrhage. Ms Ward was then five years old. She refers to Ms Ward having a tumour removed from her brain when she was approximately seven, and
Ms Ward thereafter having to undertake radiation therapy. She also records the circumstances leading to Ms Ward being diagnosed with hydrocephalus and having a shunt inserted in her head to drain the fluid. The shunt was inserted a few months after the removal of the tumour.
- When Ms Ward was approximately 13, the shunt that had been inserted some five or six years previously was replaced. The old shunt had become infected and an external shunt was inserted in its place.
- According to Ms P, Ms Ward's balance and coordination deteriorated over the years, and she had problems with her vision and memory.
- Among other things, Ms Ward now has significant ataxia (being involuntary movements that cause instability in gait). She also has poor balance and requires the use of a walker or the support of a wall or furniture to walk short distances. Ms Ward's balance is compromised when she has to carry an object.
- Ms Ward suffers from debilitating headaches. They can last for days. In or about September 2007, Ms Ward suffered from a headache which was so severe that she had to be transported to hospital by ambulance and treated with pethidine. Ms Ward concedes that her headaches affect her mobility.
- Ms Ward also concedes that she will require something in the order of 24 hours per day, seven days per week (24/7) assistance in caring for the twins for the foreseeable future. No such arrangement is presently in place. Unfortunately, the evidence (in particular, Ms M's evidence) reveals that, if placed with Ms Ward, the twins would have to attend family day care (outside Ms Ward's home) for six days each week.
In addition, care could be provided for two hours each morning (six days per week) in Ms Ward's home.
- The corollary of the arrangement proposed in the previous paragraph involves Ms Ward caring for the twins herself each weekday overnight (from approximately 6 p.m. to approximately 8 a.m.), and from approximately 6 p.m. on Saturday evening to approximately 8 a.m. on Monday morning. I find that she is simply unable to care for the twins alone for those periods or, indeed, for any extended periods.
- A good illustration of the limitations that Ms Ward confronts was provided by the evidence of her aunt, Ms D. Ms D, who lives in Newcastle, has regularly supervised contact between Ms Ward and the twins. She confirmed that both she and her daughter, Ms T, are involved in the supervision. One of them is in the room with Ms Ward and the twins at all times. When Ms Ward gets up to tend to the twins at night, Ms T also gets up. Ms D accepted that somebody must be present with Ms Ward at all times "in case things go wrong" (such as when, on one occasion, [X] fell off his bike and injured himself slightly).
- Ms D also confirmed that Ms Ward is not physically capable of picking up the twins (because her balance is not good and she can fall), and that she and Ms T will not allow Ms Ward to pick them up. Understandably, Ms Ward is frustrated by her inability to carry the twins (and, no doubt, by the fact that Ms D and Ms T will not allow her to do so).
- Indeed, Ms D's evidence was to the effect that many of the tasks associated with the care of the twins while Ms Ward is spending time with them in Newcastle are undertaken by either Ms D or Ms T.
For example, Ms T appears to be responsible for bathing the children, and either Ms D or Ms T prepares their meals. Ms T lifts the twins in order to place them in and remove them from their high chairs.
- Revealingly, Ms Ward complained that one child’s nappy was soiled on an occasion when she and Ms T travelled to Sydney to collect the twins. She clearly inferred that the existence of the soiled nappy reflected poorly on Ms Tomkins' parenting skills. I do not accept that it does, and I note that Ms Ward later resiled from her broader allegation that Ms Tomkins has not adequately cared for the twins. But as
Ms Gillies submits, the most telling aspect of Ms Ward's evidence in relation to the soiled nappy incident is the fact that Ms Ward did not change the nappy herself; she told Ms T to change it. Clearly, and as is apparent from Ms D's evidence, Ms T is responsible for what may be regarded as ordinary, routine physical tasks associated with the care of the twins.
- As I have already recorded, the court heard from an occupational therapist, Ms G, whose evidence was so flawed and lacking in balance that Ms Gillies submitted that it "slid into the realm of farce". I concur with that description. For her part, Ms McDiarmid submitted that
Ms G's evidence was completely discredited, that it was at odds with the occupational therapy assessment report from the Gold Coast Hospital and the Headway report (which was compiled after a
10 day in-home assessment of Ms Ward with the twins), and that
Ms G's focus was to look for ways to assist Ms Ward in caring for the twins in her home. I accept Ms McDiarmid's submission in those respects.
- I regret to have to record that Ms G was among the least impressive “expert” witnesses that I have ever heard give evidence. She was anything but non-partisan, and she failed to assist the court by providing an objective, unbiased opinion in relation to matters within her expertise. Regrettably, she clearly adopted the role of an advocate for Ms Ward.
- There is little point in spending undue time on Ms G's evidence. I refer, however, to the following:
- Ms G's principal report is dated 11 November 2006. It is based primarily on Ms G's observations of Ms Ward with the twins, in Ms Ward's home in [S], over a three-hour period on 4 November 2006.
- Although Ms G said in her report and during the course of her evidence that she had read previous reports relating to Ms Ward's functioning (including, in particular, the Headway report), it became clear during cross examination that she had not, in fact, read them. At one point, she said that she had "glanced at" the Headway report.
- In her report, Ms G wrote that, within the timeframe of the assessment, Ms Ward demonstrated an ability to undertake routine day to day activities associated with caring for the twins. She added, however, that Ms Ward's “capacity to undertake these tasks on a regular daily basis has not been assessed”.
- Ms G conceded that she had spent some 10 to 15 hours discussing Ms Ward’s situation with a former work colleague, and that she had spoken with Ms M on two or three occasions (and that this contact had taken place prior to and after the assessment). Ms G's former work colleague and Ms M are both very supportive of
Ms Ward, and Ms G admitted that both had asked her to “confirm” that Ms Ward would be capable of caring for the twins.
- Although Ms G saw fit to make positive comments in her report regarding Ms Ward's care of [Z], she asserted that she also had knowledge of the fact that there had been problems associated with that care. I was unable to understand her attempt to explain why she had not referred to those problems in her report. She seemed to suggest that the existence of problems associated with Ms Ward's care of [Z] were "not within the scope of (her) requirement", and that she was only concerned with Ms Ward's ability to care for [Z] during the three-hour observation session. In my opinion, Ms G's answer in that regard is clearly inconsistent with the thrust of her report.
- I was also unable to understand Ms G's attempt to respond to
Ms McDiarmid's suggestions to the effect that caring for twins involves an emotional capacity to deal with the children's significant demands and, in that respect, is far more difficult than simply performing certain physical actions. For example, and noting that the evidence revealed that Ms G is herself the mother of twins:
- Ms McDiarmid: ... Did you consider whether (Ms Ward) was already at her limit in terms of what she was able to cope with?
- Ms G: I wasn't asked to consider that within the scope of my assessment.
- Ms McDiarmid: But what I am putting to you is that, surely, the scope of your assessment as to whether somebody can care for twins must include their overall circumstances?
- Ms G: I was asked to look at her physical and functional ability to actually care for the children, not whether she could cope with the additional requirements that are for anybody looking after twins. Now, any twins are quite demanding, but anybody in the community would find those demands, would have those demands placed on them, whether they have a physical disability or not. ... I was there to look at her functional capacity to care for the twins, not actually the day to day rigours and problems associated with two young children, which I thought was outside the scope of my assessment and really for the child protection agencies and the social worker to determine whether she had the capacity to care for them socially.
- Ms McDiarmid: All right. So, are you suggesting to us that we should look at your report very narrowly in terms of just whether as a matter of physical mechanics she can care for twins?
- Ms G: I would suggest that's what I was asked to do, yes.
- Following the above exchange, I asked Ms G whether the short answer to the question of whether as a matter of physical mechanics Ms Ward can care for twins is "no". Ms G confirmed that, without support, Ms Ward cannot care for the twins. Indeed, Ms G confirmed that, without support, Ms Ward cannot care for herself.
- Ms G also said that Ms Ward's ability to lift and carry the twins safely (indeed, her ability to lift and carry any item safely) is compromised, and that she would prefer if Ms Ward were to use an appropriate piece of equipment (such as a high chair) for such tasks.
- After further questioning, Ms G conceded that she would not recommend that Ms Ward lift the children because she is likely to fall and, as a result, potentially injure herself and/or the children.
- Ms G then attempted to suggest that Ms Ward will not need to lift the children. When I put to her that it might be necessary for
Ms Ward to deal with some form of emergency (for example, if it becomes necessary to lift the children quickly and remove them from danger), Ms G's response was to the effect that children can be injured even if their parent or supervisor does not suffer from the problems that Ms Ward suffers. Indeed, she endeavoured to suggest that although toddlers require a lot of supervision, they are seemingly at less risk than younger children because they are more mobile. I accept (of course) that the twins (or any children) could be injured as a result of events that have absolutely nothing to do with their carer, but that is hardly to the point. The fact of the matter is that I am obliged to consider and compare the parties’ competing proposals, and that that task involves comparing the quality of physical care that each can provide. There can be absolutely no doubt that the twins would be at greater risk of harm if they were to be in Ms Ward's sole care than they would be if they were to be in Ms Tomkins' sole care. Indeed, much of Ms Ward's case was involved with the mechanics of putting in place support arrangements for her, the primary purpose of which is to minimise the risks to which I have referred.
- Ms G then proceeded to minimise the difficulties associated with caring for and supervising active toddlers. When Ms McDiarmid put to her an incident which occurred when the twins were very young, and which involved Ms Ward letting one of the twins slip under the water when bathing the child, Ms G said that it had no effect on her views. Ms G was similarly unmoved when referred to passages from reports in which Ms Ward's poor memory skills and inability to implement safety procedures (even when such safety procedures had been discussed with her only 10 minutes before) were described.
- During cross examination by Ms Gillies, Ms G eventually conceded that her report provides nothing more than "a snapshot of what was happening in that particular three hours" (during which "things went relatively smoothly"). There were no major tantrums on the part of the children, Ms Ward was not suffering from a debilitating headache or any other transitory health problem, the children themselves were not unwell, and no crises (as it were) occurred. I accept Ms Gillies’ submission to the effect that "... an assessment for three hours that did not reveal Ms Ward's ability to cope with any of the exigencies of normal day to day life is next to useless in determining Ms Ward's day to day functionality in caring for three children".
- I do not propose to discuss Ms G's evidence further. Unfortunately, she seemed wholly unable to make appropriate concessions, and she demonstrated that she saw her role as advocating for Ms Ward (and other people with disabilities). She also demonstrated that she could not remain impartial. Although Ms G denied that she was biased in that sense, I reject her denials and confirm the findings that I have already recorded regarding her evidence. I give it no weight, unless it is corroborated by other more independent evidence.
- Relevantly, I accept the three reports comprising exhibits LT13 LT14 and LT15 in preference to Ms G's report and evidence. Exhibit LT13 is a report prepared by Ms W, occupational therapist, of the Gold Coast Health Service following a home visit on 7 November 2005 (a few weeks before the twins’ birth on 28 November 2005). The purpose of the visit was to assess Ms Ward's "present ability and to discuss with her what she identifies as possible difficulties when she brings the twins home".
- It is clear from Ms W's report that she was concerned about Ms Ward's preparations for the care of the twins.
- Ms Ward told Ms W that [Z] was becoming involved in altercations at his school "quite often" and that it appears that [Z] is being victimised and bullied at school. Ms Ward also told Ms W that the relationships between [Z] and Mr Richards, and between [Z] and [M] (Mr Richards’s son), were "strained" and that "if things did not improve she would take out a restraining order against (Mr Richards and [M])".
- Ms W described Ms Ward's home as being in a poor state of repair. She said that Ms Ward was "at high risk of tripping and falling as she has mats covering holes in the lino and carpets". She concluded that "there is a very high risk to Ms Ward, [Z] and the babies".
- Exhibit LT14 is a report prepared by Ms S, occupational therapist, of the Gold Coast Hospital. It was prepared in or about mid December 2005 (when the twins were two and a half weeks old). The report contains the following preliminary comments:
- Ms Ward's mobility and balance deteriorated during her pregnancy to the point where she became (reliant) on a four wheel walker both in and outside her home. Ms Ward and [Z] both reported that she still had frequent falls. Ms Ward also stated that she gets bad headaches, particularly in the heat, often lasting for two days when she becomes very fatigued.
- After the birth of the twins, by caesarean section, Ms Ward was still reliant on the walker and commented on the fact that her balance had not improved, even though she was no longer pregnant.
- Under the heading "Physical", the report contains the following:
- Ms Ward presents with a significant ataxia and poor balance. When walking, she requires the support of her walker or can walk short distances (less than 1 metre) if there is the support of a wall or furniture. Ms Ward's balance is compromised when she also has to carry an object.
- When standing still for tasks, for example, making a cup of tea or changing a nappy, Ms Ward needs a wide base of support, and/or a support behind her, for example, a wall or a bench. Ms Ward often sways when standing still and will frequently use the safety support behind her.
- Ms Ward has a significant tremor in her upper limbs, which impacts on her precision of fine tasks, coordination of two-handed tasks and strength. Ms Ward has demonstrated that she can safely pick up heavier objects (greater than 3 kg) but that it is more difficult to place the object, or baby, down softly. Ms Ward can complete tasks such as dressing the babies; however, the time to complete these tasks is increased due to her difficulties with dexterity. These tasks are made easier for Ms Ward when she can complete them in a sitting position.
- The report refers to Ms Ward displaying (both in hospital and in her home) "poor short-term memory and problem solving skills, poor concentration and a moderate degree of distractibility". It comments that she does not seem prepared to utilise any strategies to assist herself to overcome her poor memory skills.
- The report also makes reference to Ms Ward's "inability to implement safety procedures when caring for her babies even when discussed only 10 minutes prior". It continues:
- During bathing and feeding times, Ms Ward has exhibited a tendency to become distractible after 20 to 30 minutes, at which point she loses the focus on her children and seeks out conversation. This is a huge risk factor and Ms Ward has needed to be re-engaged with her baby -- e.g. told to always look at her baby when bathing or to keep feeding her baby.
- The report concludes that Ms Ward needs a significant degree of support (at various levels -- relating to the implementation of memory strategies and assistance with functional problem-solving skills, physical supervision and assistance with tasks) in order to safely care for the twins.
- Exhibit LT15 (the Headway report) is a report prepared by Mr T, of Headway Gold Coast. It is dated 4 January 2006. Its expressed purpose is "to outline the current state of affairs regarding Ms Ward and her ability to provide care for her newborn twins".
- At the time of the Headway report, Ms Ward had been receiving in-home support and facilitation through Headway since 23 December 2005. In other words, the report was prepared over a 10 day period.
- Under the heading "Concerns", the report contains the following:
- (Mr Richards) has been identified as a major cause for concern by all staff, for several reasons:
- It has been stated by [Z] that Mr Richards has hit him in the past.
- Staff have observed that Mr Richards has a tendency to become extremely angry in a very short period of time, with minimal provocation.
- At the beginning of the programme, Mr Richards stated that he was intent on facilitating the process, as the twins were his children also. He promised to facilitate with the preparation of the formula and with bathing the children, and he has failed to do so.
- Staff were initially under the impression that Mr Richards’s contact with the family was supposed to be minimal, and are uncomfortable with the fact that he has been present almost every day since the program began.
- Staff have also raised concerns over Mr Richards, as they feel that he has a vested financial interest in the children. It has been reported that Mr Richards ordered Ms Ward to purchase a car using money that had been allocated to the children. This is a cause for concern as Ms Ward is unable to drive, and
Mr Richards has already begun to outfit the vehicle to suit his own tastes.
- Additionally, Mr Richards’s other son, [M], frequently fights with [Z], and is a cause of friction in the house. The children screaming and hitting each other, coupled with Mr Richards becoming aggressive and belligerent has caused Ms Ward great distress, which further exacerbates her ataxia.
- The report continues:
- Ms Ward requires prompting in many facets of day to day life skills. It has been reported that she has been receiving "Meals on Wheels" and simply putting them in the refrigerator and neglecting to eat them. She needs prompting when preparing a meal with most facets of food preparation, and lacks initiative.
- When bathing the children, Ms Ward has shown a lack of insight into the correct process for positioning the babies, and has shown a tendency to pick up the babies in a manner that leaves their heads exposed. This is hugely disturbing when taking into account Ms Ward's difficulties with balance, as she will very frequently fall or stumble into walls or furniture on either side of her. She has fallen on various occasions in the home, and if staff members had not been present, the twins could have been involved. ...
- It has been reported that there is a problem with the general cleanliness of the premises, as cockroaches have been seen feeding on the cat’s food. ...
- The Headway report makes the following recommendations:
- Mr Richards should be removed from the situation in so far as is possible;
- any money that is allocated to the children should be overseen by the Public Trust; and
- Ms Ward will need ongoing support, or in the event that no funding is secured, the children should be placed in foster care immediately, with Ms Ward having facilitated visits.
- Although the Headway assessment is now relatively old, Ms Gillies submits, and I accept, that Ms Ward's physical condition remains similar. The physical demands associated with the care of the twins are greater than they were at that time (given that the twins are now older, and mobile). To the extent that Ms G suggested that the job of caring for the twins may have become easier for Ms Ward, I reject her evidence in that regard for the reasons discussed above.
- It would appear that the only people (apart from government agencies and the like) who may be able to provide Ms Ward with 24/7 assistance with the care of the twins, or anything approaching 24/7 assistance, are Mr P and Mr Richards. Clearly, neither of those men should be permitted to come into contact with the twins.
- Ms Kirkman-Scroope argues that "it cannot be disputed that had (the support services recommended by QDOCS) been able to provide the assistance required, Ms Ward would have remained caring for her children as long she worked with QDOCS and was able to satisfy them that there was no risk to the children". On the basis of the evidence set out above, however, I am not prepared to accept Ms Kirkman-Scroope's submission in this regard. Clearly, and as Ms McDiarmid correctly submits, QDOCS was not concerned solely with Ms Ward's physical disabilities or incapacity.
- In support of her submission that Ms Ward is physically capable of caring for the twins (with adequate supports), Ms Kirkman-Scroope relies upon Ms G's evidence (which I have rejected). She also relies upon a letter from Dr P, who resisted all attempts to have him attend court and give evidence (including the issue of the subpoena). The letter from Dr P is dated 22 May 2006 and comprises exhibit SW15.
- Dr P is a neurological surgeon. His letter reads:
- I have known Ms Ward now for nearly 15 years. She has been under my neurological care during that time through the Gold Coast public neurological system. I am fully aware of Ms Ward's neurological condition and the disabilities that she suffers.
- She has successfully looked after her eldest son and there have not been any concerns with regard to her care of this child.
Ms Ward has undoubted physical neurological disabilities however too often these physical disabilities are interpreted by people as being accompanied by intellectual disabilities as well. This is not the case.
- As a medical practitioner who has known Ms Ward through her various hospital sations (sic) and attendance at Outpatients I have no doubt that Ms Ward is a capable mother and would be able to look after her young twins as well.
- There are, of course, serious doubts about the accuracy of the first sentence of the second paragraph of Dr P's letter. Given that Dr P did not make himself available to give evidence and be cross examined,
I am not prepared to place any significant weight on his opinion.
- Ms Kirkman-Scroope also seeks to rely on a letter from Dr C to Dr N dated 24 September 2004 (which letter comprises exhibit SW16). Dr C was Dr P's neurosurgical registrar. Dr N was Ms Ward’s general practitioner. Neither gave evidence in the proceedings. In my opinion, Dr C's letter does nothing to assist Ms Ward's case. It reads:
- As you know, Ms Ward has had a brain astrocytoma diagnosed
8-7 years, she has had a number of operations to debulk the tumour and had the insertion of VP shunt.
- In brief she has been coping very well and independently for most of her adult life including raising her seven-year-old son. However, the last perhaps year or so she has had marked problems with memory deterioration, a slightly worsening of her inco-ordinated gait and unsteadiness and variable degrees of headaches -- these events severe in the past and have probably settled somewhat but have been recurrent to a lesser degree.
I also hear that she has had a benign tumour diagnosed behind her right eye.
- I have also read a letter sent to outpatient clinic from the psychologist at the [S] School that her son attends ... the psychologist there really expressed concerns of deterioration and memory to the point that Ms Ward had forgot to pick up her son and her son's friend from school on a number of occasions, forgetting to bring school bags to school and the like. They have requested that we look into this as they know her very well and felt that she had only recently deteriorated.
- In brief, Ms Ward has a very inco-ordinated gait and tends to list somewhat to the left side. She has disconjugant eye movements and nystagmus. She is however alert, orientated and appropriate and shows good comprehensive (sic) in our discussion with no gross apparent failure or short-term memory evident on me talking to her. She did however claim that she lost her mobile phone somewhere today and she has no idea where she may have left it.
- In brief, we need new imaging to see where things are as regards her brain stem lesion and her intraorbital lesion, as her memory is failing, her incoordination seems to be slightly worse and certainly she has ongoing headaches although this may not be relevant to her tumour. ...
- As you know, Ms Ward has had a brain astrocytoma diagnosed
- I note that the above letter was written at least a year before Ms Ward became pregnant with the twins.
- Ms Kirkman-Scroope also refers to the evidence given by Dr R, who is Ms Ward's treating neurologist.
- Regrettably, Dr R, like Ms G, was an unimpressive witness. It was apparent that he had great difficulty in remaining impartial, and that he was prepared to stretch the truth (to an extent, at least) in order to assist Ms Ward.
- In relation to Dr R’ evidence, I would make the following comments:
- Dr R has been Ms Ward's treating neurologist since 1995.
- He last saw Ms Ward in or about July 2006.
- In letters and file notes that he wrote between January 2000 and May 2006, he described Ms Ward's medical and other problems in a variety of ways, and in a manner which was often contradictory. For example, he wrote:
- 11 January 2000: The main problem is that (Ms Ward) is severely unsteady such that she has trouble walking.
- 29 August 2000: (Ms Ward) ... has major physical disabilities. That is mainly a matter of unsteadiness of gait and some incoordination of all limbs. She also has eye movement abnormalities. Intellectually she is fine.
- 14 September 2000: (Ms Ward) has severe problems with unsteadiness of gait and great difficulty using her hands because of unsteadiness. She also has major problems with eye movements and slurring of speech is a problem.
Ms Ward's disabilities are severe and she does need a full time carer.
- 22 February 2002: Ms Ward is quite severely intellectually and physically handicapped. ... She says that she did not understand the financial implications of (a contract that she recently signed relating to the installation of a security system in her home) and I think that would be the case given her disabilities.
- 30 June 2003: Ms Ward had treatment as a girl for a brain stem tumour (glioma). This involved surgery and radiotherapy. She also has a benign tumour in the right orbit behind the eyeball. ... The previous brain stem problem has caused Ms Ward to be very unsteady when walking and also for her limbs. ... The right orbital tumour basically produces a proptosis (i.e. the right eyeball being pushed forward somewhat). It also exacerbates her problem with double vision.
- 9 December 2005: Ms Ward had twins by caesarean section. I think everything is pretty much okay. She feels that her unsteadiness of gait is a bit worse than prior to when she was pregnant. I can't see any good reason that her gait should not return to baseline for her. She is also troubled by dull headaches and difficulty sleeping.
- 16 January 2006: (Ms Ward) ... has severe problems with unsteadiness of gait and also incoordination of the limbs. She has much difficulty just walking unaided. She has recently had twins. ... She needs as much help as possible to look after the twins. She is not really capable of looking after them by herself. 24-hour help would be ideal for as long as possible.
- 20 February 2006: I would say (Ms Ward) is quite bright and any cognitive problems involving memory etc would at most be very mild. She comes across well in conversation and has a good sense of humour and a general good grasp of most situations and pieces of information. ... Ms Ward's main problem is unsteadiness, particularly unsteadiness with walking. She certainly has a major disability in this respect. Ms Ward has recently had twins. I think she would be a responsible and capable mother in most respects. As mentioned, her main problem is unsteadiness. (Emphasis added)
- A number of the above extracts were written in order to help
Ms Ward obtain assistance of various forms. The letter of
22 February 2002 was written for the purpose of helping
Ms Ward to avoid the consequences of having entered into a contract relating to the installation of a security system for her home (which, it would appear, she either could not afford or did not want).
- Dr R’ evidence regarding the frequency with which he has assessed Ms Ward and the nature of such assessments was less than satisfactory. That being the case, I have some discomfort with his expressed the view to the effect that Ms Ward’s disabilities have been "very much stable" throughout the time that he has known her.
- Dr R conceded that Ms Ward drops things occasionally. He also said that it had not been his role to examine Ms Ward's disabilities for the purpose of determining whether (for example) she is able to lift one of her children. Nor did he assess Ms Ward's capacity to respond promptly to the twins’ needs if required.
- Dr R also conceded that his opinion as to Ms Ward's capacity to care for the twins was at least partially formed as a result of Ms Ward's description to him of the manner in which she had coped with caring for [Z]. He had never assessed her with a view to determining whether she can or cannot perform the daily tasks required in caring for the twins. Indeed, he conceded that he had never seen her with the twins.
- Given that he wrote in September 2000 that Ms Ward (herself) requires a full time carer, and given his expressed view to the effect that her physical condition has neither improved or deteriorated since that time, Dr R was unable to satisfactorily explain why he now feels that Ms Ward does not require a
full time carer.
- Dr R evidence regarding the frequency and severity of Ms Ward's headaches was vague and unsatisfactory. He described them as "troublesome" for Ms Ward. He was not aware that Ms Ward has had multiple admissions as a result of debilitating headaches. When pressed, he eventually conceded that Ms Ward would get nausea at times with the headaches, and that the headaches could occur on a daily basis or even go on for days.
- Dr R also conceded that he had never formally tested Ms Ward's "intellectual ability" or whether there was any impairment to her intellectual capacity.
- In summary, I accept Ms McDiarmid's submission to the effect that the Dr R was "entirely discredited as a witness" and that his evidence is "wholly unreliable". Regrettably, my impression of Dr R is that he was prepared to say whatever he considered might be of assistance to Ms Ward.
Some other issues, and comments on various witnesses (or non-witnesses)
- The following questions (among others) arose during the proceedings:
- Were the twins actually at risk of being taken into the care of QDOCS when they were first delivered into Ms Tomkin's care?
- Might QDOCS still be minded to remove the twins from
Ms Ward if the court were to conclude that they should be placed in her care?
- I have answered those questions (as best I can) below.
- I have also commented upon the evidence of some of the more significant (or, in Mr P's case, more memorable) witnesses who appeared during the course of the trial (and I have made a more general comment about Ms Ward's father, Mr W, and brothers, Mr T and
Mr Z). I have not commented upon the evidence of every witness who appeared during the trial under this heading, and have dealt with the evidence of others (to the extent that I have deemed such evidence to be relevant to the matters in issue in the proceedings or otherwise of assistance to the court) elsewhere in these Reasons.
Were the twins at risk of being taken into the care of QDOCS when they were originally delivered into Ms Tomkins' care?
- It appears to be part of Ms Ward's case that the twins would not have been taken into the care of QDOCS if they had remained in her care in early 2006. On the basis of the evidence (including affidavit evidence) of Ms Tomkins, Mr Ward and Ms P, and the oral evidence of Ms F, however, I find that it is clear beyond argument that the twins would have been removed by QDOCS within a very short period of time.
My view in that regard is reinforced by the very clear terms of the three reports comprising exhibits LT13, LT14 and LT15 -- the contents of which I have discussed above.
Is it likely that QDOCS will remove the twins from Ms Ward's care if they are placed with her at this stage?
- On the totality of the evidence before me, I find that there is a strong likelihood that QDOCS would indeed remove the twins from Ms Ward if the court were to now place them in her care.
- I do not propose to dwell on Mr Ward's evidence. I do wish to refer, however, to that part of it which relates to his telephone conversation with Mr P.
- Ms Kirkman-Scroope submits that Mr Ward is "an aggressive, angry and threatening character" as evidenced by "his demeanour in the witness box and the compact disc recording of the telephone threats he made to Mr P". I do not agree, and reject Ms Kirkman-Scroope's submission in that regard. I did not find Mr Ward to be aggressive, angry or threatening at any time. It is true, however, that his evidence relating to his conversation with Mr P was less than satisfactory, and that the language he used to Mr P was both inappropriate and unfortunate. It is also true that he made a number of threats to Mr P. In relation to the inconsistencies in Mr Ward's evidence regarding the contents of the telephone conversation, I accept Mr Ward's explanation that he simply did not remember the conversation being as "bad" as it was. On the other hand, having seen and heard Mr P in the witness box, I can well understand Mr Ward's frustration and anger with him -- particularly when regard is had to Mr P's repeated assertion that
Mr Ward had "stolen" Ms Ward's children (which, as I have found elsewhere in these Reasons, is simply untrue).
- I note, as well, that Mr Ward was not aware that Mr P was taping the telephone conversation. To that extent, and to use a colloquialism,
Mr Ward was "set up".
- To place this telephone conversation further in context, I refer to exhibit LT12 -- which comprises an e-mail sent by Mr P to Mr Ward's mother, Ms P. The email is dated 5 September 2006 and was obviously written after Mr P had read Ms P's first affidavit. In my opinion, the email comprises a cowardly and wholly inappropriate attack on Ms P, as both a witness and a mother. Among a number of other very hurtful things, Mr P wrote: "If all this turns Ms Ward’s dormant cancer around, let it be on your head." He also suggested that whatever Ms P had done for Ms Ward was "only a tenth of what any caring mother would do for a child."
- I have discussed Mr P (briefly) below.
- In her affidavit sworn 29 August 2006, Ms P confirms that she is the mother of Ms Ward and Mr Ward, and the grandmother of [Z] and the twins. She has two other (adult) children, Mr T and Mr Z.
- Ms P was born in September 1947.
- As I have recorded above, Ms P describes Ms Ward's medical and developmental history (leading up to the time that Ms Ward gave birth to [Z]) in paragraphs 8 to 33 of her first affidavit -- commencing with the occasion when Ms Ward collapsed at school, having suffered a cerebral haemorrhage, when she was five years old.
- Over the years, Ms Ward's balance and coordination deteriorated. She also had problems with her vision and memory, and she suffered from severe headaches.
- Ms P describes Ms Ward as being very stubborn.
- Referring to the period following [Z]'s birth, Ms P said as follows:
- Ms Ward assisted in [Z]'s care when she could. After [Z]’s birth, Ms Ward complained often, at least every night and some time throughout the day, of headaches and she had to go and lie down.
- I encouraged Ms Ward to take part in [Z]'s care. I saw Ms Ward tried very hard to assist in [Z]'s care. I saw Ms Ward getting frustrated when she took too long with the tasks of changing [Z] or feeding him. I observed during the four weeks that Ms Ward and [Z] stayed with me after [Z]'s birth, whenever Ms Ward tried to change [Z]'s clothes or nappies, when [Z] wiggled or moved and she could not do the pin up, Ms Ward screamed her frustration: "I can’t do this". I sewed Velcro on [Z]'s clothes to make it easier for Ms Ward to change him.
- Ms Ward also tried to feed [Z]. I observed that when Ms Ward tried to feed [Z], she could not put the milk bottle in [Z]'s mouth as her hand was shaking too much. I encouraged Ms Ward to persevere and sometimes it took two to three minutes before she was able to put the milk bottle in [Z]'s mouth.
- After Ms Ward and [Z] left Ms P's home, Ms P continued to visit them at least three or four times per week. When she visited, she took over the care of [Z]. Ms P also spoke with Ms Ward regularly on the telephone.
- From when [Z] was approximately 6 months old, Ms P looked after him almost every weekend (from Friday afternoon to Saturday or Sunday).
- Ms P continued to support Ms Ward in caring for [Z]. She frequently received phone calls from [Z]'s school regarding his behaviour, and regarding problems such as [Z] not having his medication (for ADHD) with him, or not bringing any lunch. Ms P would often have to attend to these problems, including either taking lunch to [Z] at school or organising with the school for lunch to be supplied to [Z] from the canteen.
- Ms Ward would contact Ms P (at least once a week), in tears and complaining of headache. She would often ask Ms P to look after [Z] for her, particularly when she was pregnant with the twins.
- After Ms Ward gave birth to the twins in late November 2005, and while she was still in hospital, Ms P was made aware that QDOCS had serious concerns regarding Ms Ward's ability to care for the twins, and regarding Mr Richards. Although Ms Ward was discharged from hospital on 6 December 2005, the twins were not released.
- Ms P liaised with QDOCS, and on or about 20 December 2005 she entered into an agreement and safety plan with departmental officers. The twins were then released into her care. The agreement and safety plan comprises annexure "A" to Ms P's affidavit. Relevantly, it reads:
- Ms P to be the primary carer for (the twins) until such time as (Ms Ward) has 24/7 support in her home and she is able to resume the primary care role of the twins.
- 1. Ms P to ensure that neither (Ms Ward) nor (Mr Richards) has unsupervised contact with (the twins).
- 2. (Ms Ward) to only undertake child-care tasks under direct supervision by Ms P or other departmentally approved person.
- 3. Any child protection concerns are to be reported to (QDOCS) immediately.
- 4. Ms P is to accept planned and unplanned visits from (QDOCS).
- The above plan is to remain in place until such time that 24/7 support can be implemented at (Ms Ward's) residence.
- In paragraphs 58 and 59 of her first affidavit, Ms P describes some of the difficulties experienced by Ms Ward in endeavouring to care for the twins. It is clear that Ms Ward would resist Ms P's attempts to prevent her from doing things with the twins that Ms P considered may place them at risk. At times, Ms Ward became extremely angry with Ms P, and abused and insulted her.
- In relation to the decision to place the twins in Ms Tomkins’ care, Ms P said as follows:
- In or about January 2006, Ms Tomkins and Mr Ward arrived from Sydney to help me care for the twins. I was at the time suffering from stress. On or about 13 January 2006, Mr Ward,
Ms Tomkins, Ms Ward, Mr Richards and myself discussed the care of the twins and we reached agreement that it is in the best interests of the twins for them to go to Sydney and live with
Ms Tomkins and Mr Ward. (QDOCS) were informed of this new agreement.
- In or about January 2006, Ms Tomkins and Mr Ward arrived from Sydney to help me care for the twins. I was at the time suffering from stress. On or about 13 January 2006, Mr Ward,
- In her second affidavit (sworn on 14 November 2006), Ms P deposes to the fact that Ms Ward contacted her after she was served with Ms P's first affidavit. Ms Ward said a number of things to her, including: "You aren't my mother". Notwithstanding Ms P’s long involvement with [Z]'s care, and her close relationship with him, Ms Ward then prevented her from having contact with [Z] for more than a month.
- Ms P gave evidence on 15 May 2007. Among other things, she said as follows (or gave evidence to the following effect):
- She lives very close to Ms Ward (a five-minute drive).
- She described friction between Ms Ward and herself after the twins’ birth, when Ms Ward was living with her. Ms Ward was not present at all times and reacted angrily when Ms P would not hand one of the children to her immediately when requested.
- She has been under considerable pressure, and her health has suffered, as a result of these proceedings and the events leading up to them. Ms P has developed "nerve problems" and has been prescribed appropriate medication by her GP and psychiatrist. She has received abusive phone calls, including from Ms Ward, to the point that she has become fearful to answer the telephone.
- The question of whether the twins should live with Ms Ward or with Ms Tomkins (or, indeed, whether they should be placed in foster care) has caused deep divisions within her family. Clearly, Ms P and Mr Ward are of the view that the twins should remain with Ms Tomkins. According to Ms P, her former husband
(Mr W) and her sons Mr T and Mr Z have all told her that
Ms Ward is not capable of caring for the twins and that they should be placed in foster care. They are angry with her for getting involved in the dispute generally, and for taking
Ms Tomkins' side in particular.
- She is willing to take on a supervisory role, to enable Ms Ward to spend time with the twins. She is very anxious, however, about Ms Ward's attitude to her, and about Ms Ward's reluctance to accept her direction.
- She has spent time with Mr Ward and Ms Tomkins in New South Wales when Ms Tomkins has had the twins. Mr Ward was involved with the twins when she was present and she envisages Mr Ward playing a very active part in the twins’ life in the future.
- She remains in close contact with Ms Tomkins, and speaks with her every day.
- She is not in a position to provide financial assistance to enable the twins (or others) to travel between Queensland and New South Wales.
- When Ms Kirkman-Scroope asked Ms P if she would do all things possible to assist Ms Ward if the twins were placed in Ms Ward’s care, the following exchange occurred:
- Ms P: I would help. I promised (Ms Ward) that ... I will be there for the twins always as for [Z], but too much has happened to her at the moment that I am not going to be at her beck and call any more. ... That may upset (Ms Ward) when in this court but I'm sorry, I have done everything I can for [Z] and I have done everything I can for (Ms Ward) and I love these twins dearly with all my heart, and I love her. ... I can only do so much now.
- Ms Kirkman-Scroope: And that's to look after your own health?
- Ms P: Yes
- Ms Kirkman-Scroope: So she couldn't call upon you if there was an urgent need for assistance?
- Ms P: Yes, she could. I'm sorry, that sounds like backtracking but, yes, I am there as a backup but I'm not there 24/7 anymore. I am not there to help her with the caring of the children now.
- Ms Kirkman-Scroope: So you're not prepared to help her with the caring of the children?
- Ms P: Not full time, no.
- Walters FM: Did you mean by that, you're not there to help her with the day to day care of the children, but if some sort of emergency arose you'd always help?
- Ms P: Yes, I'd be there, your Honour. ... My health is very bad at the moment. ... I have always been there for [Z] and I mean, don't get me wrong, I love these twins so much but Ms Ward ... is very stubborn in her way. She is a very independent child. I'm very proud of her independence but she will not listen to you and she'll call you if she wants to go out that night, but I may not hear from her for a few days. If she needed me urgently, I would be there and I know she will get a lot of headaches so it's going to be ongoing like she did with [Z]; she'll be in hospital all the time with headaches because it's too much pressure.
- Ms P was emotional and close to tears as she gave the above evidence.
- I accept Ms P's evidence in its entirety, although I acknowledge that there is likely to be some exaggeration within it. She was an impressive, open and rather vulnerable witness, who was clearly torn between her desire to support Ms Ward and make her happy and her genuine belief that Ms Ward is simply incapable of caring for the twins adequately (and certainly less capable of caring for them than
Ms Tomkins). As Ms P said in paragraphs 71 and 72 of her first affidavit:
- I love Ms Ward. I love the twins. I know Ms Ward loves the twins. I am however concerned about Ms Ward's capacity to care for the twins. Ms Ward's health affects her capacity to care for the twins.
- I support Ms Tomkins’ application. It is in the twins’ interests to live with Ms Tomkins.
- Mr W is Ms Ward's father. He did not involve himself in the proceedings and was not called as a witness.
- According to both Ms Tomkins and Ms P, Mr W has told them that
Ms Ward is not capable of caring for the twins and that they should be placed in foster care.
- I see no reason to deal in any detail with the subject of Mr W and his potential involvement in the life of the twins. Having regard to the orders that I propose to make, this subject is of little relevance. To the extent that it may have some relevance, however, I accept and adopt paragraphs 174 to 176 of WS(ICL).
- Mr Richards has had minimal contact with the twins. It is likely that he last spent time with them in or about January 2006, before they commenced living with Ms Tomkins.
- Ms Gillies submits, and I accept, that Mr Richards represents "a real and serious risk of emotional, physical and psychological harm to the children". He presented in court as an impatient, volatile, disrespectful, cynical, selfish and extremely aggressive man, for whom the twins’ best interests are of minimal weight or significance. Although I have used the expression once or twice in other cases over which I have presided, I feel that Mr Richards can best be described as being like "a coiled spring" (to use a colloquialism).
- I accept and adopt paragraphs 153 to 162 and 170 to 173 of WS(ICL), and see no reason to deal further with the subject of Mr Richards’s involvement with the twins, or with his evidence.
- I would add, however, that it has been held that violence to a partner involves a significant failure in parenting – being a failure to protect the child’s carer and a failure to protect the child emotionally.
- Frankly, the less said about Mr P, the better. I accept and adopt paragraphs 187 to 191 of WS(ICL) – and, in particular, Ms Gillies’ description of Mr P as a loud, overbearing, bitter and rude man.
Ms McDiarmid described his views as "angry and poisonous". In my opinion, it is not in the twins’ best interests to have any contact with him.
- Ms Kirkman-Scroope did not suggest otherwise. In an extraordinary understatement, she said that it "cannot be disputed ... that Mr P was something of an unimpressive witness in the mother's case".
- Ms M is a social worker. She is the manager of Gold Coast Advocacy Inc. In her affidavit sworn 12 November 2006, she says
- I have been the manager of Gold Coast Advocacy Inc since December 1996. Our agency is funded by Disability Services Queensland to provide individual advocacy and advocacy support on behalf of people with disability. In relation to Ms Ward, this work involves lobbying government and non-government agencies to ensure that Ms Ward's fundamental needs are met and her rights are upheld.
- Not surprisingly, Ms M supports Ms Ward's case for the twins to live with her.
- Much of Ms M's affidavit describes support and assistance that was available for Ms Ward in late 2006. Ms M summed up the position as follows:
- ... Ms Ward would be entitled to just over three weeks of assistance for seven nights each week. This may be quite useful to her in the initial period if the children are returned to her care.
- Unfortunately, Ms M's affidavit did not deal with the assistance that might be available to Ms Ward after that period, and in the long term.
- Ms M gave evidence on 3 October 2007. As might be expected for a person who describes herself as an advocate for Ms Ward (but not an advocate for the children), her evidence lacked balance. Her focus was clearly on assisting Ms Ward, and not on the best interests of the twins -- although she occasionally endeavoured to "dress up" her evidence in such a manner as to suggest that she is mindful of the twins’ welfare. I am not persuaded, however, that Ms M was genuinely concerned with the question of what may be best for them.
- In my opinion, it is apparent from Ms M's affidavit and her oral evidence that her (and Ms Ward's) efforts to obtain assistance have been haphazard and lacking in direction. Notwithstanding Ms M’s suggestions to the contrary, I find that such efforts have frequently been left to the last minute, and were generally reactive rather than proactive (as might be expected when regard is had to the fact that Ms M enthusiastically advocates for Ms Ward's "right" to care for her children, but seems to regard the children's best interests as something of an afterthought at best). For example, when Ms McDiarmid put to her that "the totality of what's on offer does not amount to 24/7 care", Ms M agreed but added that "we are still making some enquiries with Disability Service Queensland". By this stage, the proceedings had been on foot for approximately 18 months.
- An example of the haphazard arrangements that Ms M assisted
Ms Ward to make is the weekend of 29/30 September 2007 (being the weekend immediately prior to the recommencement of the trial on
1 October 2007). It is clear from Ms M's evidence that her attempts to arrange supervisors for that weekend were chaotic and, frankly, inept. In the end, it appears that she arranged four different supervisors for the period from 9 a.m. Saturday to 5 p.m. Sunday -- none of whom were known to the twins.
- Ms M also conceded (belatedly, and reluctantly) that many or all of the supports that she suggested might be able to be put in place to assist Ms Ward if the twins were to reside with her are subject to funding (by government or other organisations), and might not necessarily be available in the long term -- as would be the case if, for example, relevant policies change or funding priorities alter.
- I asked Ms M whether she could tell me what support arrangements would still be in place for Ms Ward one year after the date that she was giving evidence. Her response was that she could say "to a high degree of certainty" that Ms Ward would have assistance with the twins (through Coastal Accommodation Support Service Inc and Gold Coast Community Care) between 8 a.m. and 10 a.m. six days per week (being Monday to Saturday), and that she would also have assistance (outside her home, through Family Day Care) between 10 a.m. and 6 p.m. on those days. She was unable to predict what support arrangements might be available at other times (being from 6 p.m. to 8 a.m. Monday to Saturday, and all day Sunday).
- I also asked Ms M whether the support arrangements described in the previous paragraph would involve a continuity of personnel (as it were). She said in response: "My sense is it would be the same -- you know, basically the same group of people".
- Finally, Ms M confirmed that, because she is based on the Gold Coast, she will be unable to take "a long-term role" in assisting Ms Ward if Ms Ward were to relocate to Newcastle. In other words, if Ms Ward were to relocate to Newcastle, Ms M's organisation would have to withdraw. It follows (and Ms M confirmed) that Ms M knows nothing about any long-term arrangements that Ms Ward may be able to make for the care of the twins if she were to live in Newcastle.
- I fully understand Ms M’s desire to assist Ms Ward and advocate for her. She has clearly been a loyal, sympathetic and caring support person for Ms Ward, and Ms Ward recognises her as such. She has done her best to press Ms Ward's case, but at the end of the day the fact remains that -- as I have said elsewhere in these Reasons -- it is the best interests of the twins that comprise the paramount consideration for the Court. As the Full Court said in Holmes (1988) FLC 91-918 (in the context of a relocation case, and in relation to the law as it stood then):
- The basal principle is clear: in any case under the Family Law Act involving children the ultimate determinant is the welfare of those children. The wishes or desires of one or both of the parents may of necessity have to give way to that.
- In the context of the present case, it is fair to say that the wishes or desires of both Ms Ward and Ms Tomkins, and of Mr Richards and
Mr Ward as well, may have to give way to the overall best interests of the children (which comprise the touchstone of the ultimate decision – although, clearly, the court must approach the process of determining what might be in the children's best interests in the manner described under the heading "the Law" above). Much the same can be said of any “rights” (however defined) that Ms Ward, Ms Tomkins,
Mr Richards or Mr Ward may have.
- Like Ms M, Ms J is a social worker. At the time that she swore her affidavit (13 November 2006), she was employed with Blue Care in [L], Queensland, where she had worked since 2005.
- Ms J was Ms Ward's social worker between May 2006 and the time that she left Blue Care.
- Much of Ms J's affidavit (sworn 13 November 2006) describes support and assistance that was available for Ms Ward in late 2006. The affidavit does not reveal, however, that support and assistance was available to Ms Ward on a 24/7 basis at that time. Nor does it support Ms Ward's suggestion that she had been able to arrange 24/7 support and assistance in or around May 2006.
- Interestingly, Ms J does not say in her affidavit that she supports
Ms Ward's case for the twins to be placed in her care. The affidavit deals with factual matters only. Like Ms M's affidavit, however, it focuses on inquiries that appear to have been made only shortly before the affidavit was sworn.
- Ms J gave evidence on 5 October 2007. She confirmed having had ongoing discussions with Ms G regarding her assessment, and regarding Ms G's findings. She also confirmed having written a letter dated 2 August 2006 and headed "To Whom It May Concern". The letter was written in support of Ms Ward's application for funding to Disability Services Queensland. It contains the following passage:
- To date, my role has been to assess Ms Ward's needs as a parent of twins and to determine the services required to support her in the parenting role. In order for the children to be returned to
Ms Ward's care, (QDOCS) are stating that 24 hour assistance is required to support Ms Ward in her parenting role. Clearly, without financial support from DSQ, through the provision of recurrent funding, it will be impossible to provide this level of support and assistance in the home. This would deny Ms Ward her right to parent children and the children ... the right to be cared for by their natural parent.
- To date, my role has been to assess Ms Ward's needs as a parent of twins and to determine the services required to support her in the parenting role. In order for the children to be returned to
- Notwithstanding Ms J’s best efforts (which included the writing of the above letter), Ms Ward's application for financial support from DSQ to facilitate the 24/7 assistance required by QDOCS was rejected.
Section 60CC factors
- I now turn to consider the section 60CC factors.
- Before proceeding further, however, I remind myself that I must regard the twins’ best interests as comprising the paramount consideration in this case. It is for the purpose of determining which party's proposal best promotes that consideration that I must consider the matters set out in section 60CC.
- Clearly, the twins’ parents are Ms Ward and Mr Richards. Equally clearly, Ms Tomkins and Mr Ward are not the twins’ parents. To that extent, some of the factors or considerations set out in section 60CC may need to be interpreted more broadly than might otherwise be the case.
- Section 60CC(2)(a) refers to "the benefit to the child of having a meaningful relationship with both of the child's parents". Section 60CC(2)(b), however, refers to "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence". In other words, it makes no reference to the relevant child's parents. In the present case, Ms Gillies submits, and I accept, that the twins are at significant risk of actual abuse, or physical or psychological harm, and of being exposed to family violence, if they were to come into contact with Mr Richards.
- Ms McDiarmid submits, and I accept, that, to a large extent, the nature of the relationship that Ms Ward will have with the twins depends on her:
- If she has the maturity to accept that it is in the children's best interests not to reside with her at this time, and to make the most of all the time that will be available for her to spend with the children, that relationship may grow into a close and loving one. If she continues to blame Ms Tomkins and Mr Ward for the fact that she cannot see her children as much as she would want, and to ignore the stark realities of her overall circumstances, and if she continues to be influenced by the angry and poisonous views of (Mr Richards) and Mr P, then she is likely to continue to be as frustrated and unhappy as she has presented during the court hearings, to blame those around her for her situation, and to continue to deny the twins and herself the maximum opportunity for developing a mutually close and loving relationship.
- None of the written submissions deal specifically with this consideration, namely the benefit to the twins of having a meaningful relationship with both of their parents.
- It is clear from the Full Court's approval of the decision of Brown J in Mazorski & Albright  FamCA 520; (2008) 37 FamLR 518, however, that the “additional considerations” (in section 60CC(3)), can be dealt with before dealing with the primary considerations (in section 60CC(2)).
I consider that such an approach is appropriate in the present case.
Protection from harm
- As indicated above, I propose to deal with this consideration after I have dealt with the considerations listed in section 60CC(3), to the extent that they are relevant.
Nature of relationship
- It is not in dispute that the twins have a close and loving (and meaningful) relationship with Ms Tomkins. She is their primary attachment figure, and their primary caregiver.
- Prior to the making of interim orders in May 2007, the twins had no effective relationship (whether meaningful or otherwise) with
Ms Ward. It is sufficient, in this regard, to refer to Mr Robinson's observations in the family report.
- I have no doubt that Ms Ward's relationship with the twins has improved considerably since that time. Ms Gillies submits, however, and I accept, that Ms Ward's relationship with them is "still problematic". For example, on 11 July 2007, Ms Ward cut short the time that she had available to spend with the twins (by approximately
2 hours) because, according to Ms Ward, they were crying and they wanted to be with Ms Tomkins. When pressed by Ms Gillies as to why Ms Ward did not make a greater attempt to continue her time with the twins on that occasion, she replied:
- I am (a capable mother), but they were crying. They wanted
Ms Tomkins because, to them, Ms Tomkins is their mum.
- I am (a capable mother), but they were crying. They wanted
- Ms Gillies also makes reference to another occasion when Ms Ward failed to spend time with the twins in Queensland, although it appears that she was quite capable of doing so. In September 2007, on an occasion when the twins were in Queensland, Ms Ward suffered from a headache to the extent that it became necessary for her to go to hospital by ambulance. Ms Ward arranged for [Z] to stay with Ms P (where the twins were staying as well). After receiving treatment at the hospital, she was discharged at approximately 4 p.m. According to Ms Ward, she had completely recovered from the headache.
- Instead of going to see the twins (and [Z]) at her mother's home,
Ms Ward proceeded to spend time with Mr Richards. She did not return to her home until 10 a.m. the next morning. Ms Ward had no adequate explanation for her failure or refusal to spend time with the twins on that occasion. Further, she had no adequate explanation for her failure or refusal to involve [Z] in her time with the twins -- particularly when regard is had to the fact that Ms Ward was well aware that [Z] was feeling excluded at that time, and that he appeared to be vying for her attention. To the extent that Ms Ward suggested that she did not spend time with the twins or [Z] because her mother urged her to "have a nice quiet night", I reject her evidence in that regard. I find that Ms Ward was quite capable of spending at least some significant time with her children on that occasion (after she had left the hospital) if she was minded to do so. Further, Ms Ward has not hesitated to disagree with her mother's views regarding the best way to manage her health problems in the past, and I have no doubt that she would have insisted upon seeing the twins on the occasion in question if that had been her desire. I find that Ms Ward's attempt to blame her mother's advice (if such advice was in fact given) for her failure or refusal to spend time with the children on this occasion is simply an unfortunate example of Ms Ward's propensity to blame others for problems of her own making (and, indeed, for problems which are beyond anybody's control).
- The twins do not have a relationship with Mr Richards. Ms Gillies submits, and I accept, that:
- Mr Richards has had substantiated (and unsubstantiated) reports of abuse made about him to QDOCS;
- Mr Richards has assaulted a woman with whom he had a previous domestic relationship, and he has also assaulted Ms Ward; and
- at the time of the involvement of QDOCS in 2005/6, Mr Richards was seen as a risk factor in relation to the twins; QDOCS formed the view that it was not appropriate for the twins to be released into Mr Richards’s care, and that they would be at risk if such were to occur.
- There is not a great deal of evidence regarding the twins’ relationship with Mr Ward. I accept, however, that he spends a significant amount of time with Ms Tomkins and with them. I also accept that he cares for them and has a close relationship with them.
- Overall, this factor favours Ms Tomkins’ proposals over Ms Ward's proposals.
Facilitation and encouragement of relationship between children and parent
- Strictly speaking, this consideration focuses on "parents". To that extent, it is not directly relevant. Still, if its substance is considered (as opposed to its form) then, as Ms Gillies submits, it becomes relevant to examine whether Ms Tomkins is capable of encouraging a close and continuing relationship between the twins and Ms Ward and whether, on the other hand, Ms Ward is capable of encouraging a close and continuing relationship between the twins and Ms Tomkins (to whom they are primarily attached in a psychological sense).
- Clearly, and as Ms Gillies submits, Ms Ward harbours great resentment towards Ms Tomkins; she sees her as someone who stole the twins and has refused to return them. Ms Gillies also submits, fairly in my view, that Ms Ward "shows a propensity to reinvent circumstances to paint herself as the victim and to focus all wrongdoing on (Ms Tomkins)".
- In those respects (and, unfortunately, in others as well), Ms Ward seems incapable of giving Ms Tomkins credit where it is due. After all, Ms Tomkins effectively turned her life upside down in order to take over the care of the twins when they were only some five weeks old, and when it seemed perfectly apparent that QDOCS would remove them if Ms Ward could not obtain 24/7 assistance to care for them. Indeed, Ms Ward has never been able to secure that level of care (with the possible exception of a relatively short period in mid 2006).
- I record, at this point, that I emphatically reject the suggestion that Ms Tomkins "stole" the twins from Ms Ward. I also emphatically reject the suggestion that Ms Tomkins "deceived" Ms Ward at the time that the twins were placed in her care. I have dealt with these subjects in more detail below, under the heading of “Capacity to Provide for the Children's Needs”.
- It needs to be said, as well, that the oft repeated request or demand from Ms Ward and those who support or represent her to the effect that the twins should be "returned" to Ms Ward is arguably misleading. The fact of the matter is that the twins have never been in Ms Ward's sole care. Indeed, she was not even permitted to remove them from hospital after their birth. As I have recorded above, Ms Ward's mother, Ms P, was the twins’ primary carer before Ms Tomkins assumed that role, and the "Agreement and Safety Plan" negotiated with QDOCS required that Ms P ensure that neither Ms Ward nor Mr Richards have unsupervised contact with the twins.
- Ms Gillies submits that Ms Tomkins could have done more to facilitate and encourage Ms Ward's relationship with the twins. I accept that she could indeed have done more but, in my opinion, an excessive amount of time was spent at trial reviewing and analysing specific examples of occasions when Ms Tomkins may or may not have had good reason for refusing or otherwise failing to facilitate contact. Similarly, an excessive amount of time was spent at trial reviewing and analysing specific examples of occasions when Ms Ward may or may not have made a greater effort to ensure that she had contact with the twins. The reality is that significant travel was an integral part of any contact arrangement, however organised. I am prepared to accept that, by and large, Ms Tomkins made adequate efforts to facilitate and encourage Ms Ward's relationship with the twins and that Ms Ward made adequate efforts to ensure that she remained in contact with them.
- I have no doubt that Ms Ward's resentment of and hostility towards
Ms Tomkins impeded her capacity to work constructively with
Ms Tomkins for the benefit of the twins, including in relation to contact arrangements. Put simply, Ms Ward felt that she should not have to ask Ms Tomkins' permission -- or the Court’s permission, for that matter -- if she wished to spend time with her children.
- Ms Gillies submits that "the inescapable conclusion of any reasonable person" reading Ms Tomkins’ affidavit sworn 25 September 2007 is that time with Ms Ward makes the twins ill. I do not agree. During the course of her evidence, Ms Tomkins said, and I accept, that her purpose in mentioning the matters that she did in her affidavit was to emphasise that she has raised health issues with Ms Ward (in the context of preventative measures designed to ensure that the twins become unwell less frequently) and that, unfortunately, Ms Ward has not always been prepared to heed her advice or accept her suggestions. Ms Tomkins did not suggest that Ms Ward's time with the twins should be minimised, or reduced in any way, because of the twins’ bouts of illness. In my opinion, she was simply expressing a degree of frustration regarding her inability to persuade Ms Ward of the need to (for example) keep the twins warm, keep them out of the wind and keep a hat on them when they are outside.
- Similarly, Ms Gillies appears to submit that I should somehow conclude that Ms Tomkins has not facilitated a relationship between Ms Ward and the twins because she did not produce a medical certificate confirming that the twins should not undertake air travel for a period of six months. I am not prepared to draw such a conclusion. During her cross examination of Ms Tomkins, Ms Kirkman-Scroope insinuated that Ms Tomkins asked her doctor "to write lies".
Ms Tomkins rejected that insinuation, and I accept her evidence in that regard. Further, I accept that Ms Tomkins did obtain a medical certificate stating that the twins should not fly for a period of six months, even if she could not produce the certificate when it was requested. In any event, the fact of the matter is that Ms Tomkins did not rely on the certificate to wholly prevent contact between Ms Ward and the twins in Queensland during the relevant period. The twins travelled to Queensland by car.
- Ms Gillies’ reference to Dr D's evidence (to the effect that, when he examined each twin’s ears and throat, he saw nothing which would suggest that he or she is not able to travel by plane) is of little assistance. A child's state of health at one moment in time says nothing about that child's state of health at a different time. In any event, during cross examination by Ms McDiarmid, Dr D acknowledged that, in certain circumstances, the fact that a child is suffering from otitis media “may be a contraindication for air travel”. Dr D said that much would depend upon how well the child was at that time of any proposed air travel. It appears not to be in dispute that both children had otitis media on at least two occasions during 2007.
- I accept Ms Tomkins' evidence to the effect that her experience has been that the twins find both air travel and car travel unpleasant. It is not to the point that medical practitioners may be of the view that the twins are capable (from a medical point of view) of travelling by air or otherwise. The fact of the matter is that Ms Tomkins knows the twins better than anyone, and she is well aware of experiences that they find unpleasant or uncomfortable. I am not prepared to find that
Ms Tomkins has unreasonably or inappropriately attempted to use the twins’ discomfort with certain forms of travel to justify a failure or refusal to organise or facilitate contact.
- In relation to car travel, for example, Dr D was of the view that the frequency of the travel currently being undertaken by the twins seems onerous. Relevantly, I refer to the following exchange:
- Walters FM: You see, I understand your answers to some of the questions as being certain things may not be contraindicated according to medical doctrine or diagnosis, but I assume you're not saying in a general sense that children who get car sick should be forced to travel long distances if there are other alternatives?
- Dr D: That's correct. It also depends on the frequency of travel and frequency of symptoms. If it's something that's happening from time to time that is not as much of an issue as if it's happening most weekends in a month, where it currently is.
- Like Ms Gillies, Ms Kirkman-Scroope submits that Ms Tomkins has not taken all steps possible to promote an appropriate relationship between Ms Ward and the twins. Indeed, Ms Kirkman-Scroope submits that Ms Tomkins has "deliberately and mischievously sought to alienate the children from their mother entirely". I do not propose to repeat the comments that I have made above regarding Ms Gillies’ submission in relation to this subject. Suffice it to say that I reject
Ms Kirkman-Scroope's submission, and find that Ms Tomkins has not acted as described by her. Again, that is not to say that Ms Tomkins could not have done more to foster the twins’ relationship with
Ms Ward. I am sure that she could have done more. In my opinion, however, Ms Kirkman-Scroope's submission ignores Ms Ward's antagonistic attitude towards Ms Tomkins (and others), her unreliability and her (at times) petulant and/or self-centred behaviour.
- I have read and taken into account the lengthy list of complaints regarding Ms Tomkins' behaviour set out (in dot point form) on pages 1 to 14 of WS(S). In my opinion, there is little point in analysing or reviewing each of the complaints. They neither add to nor subtract from the findings that I have made elsewhere in these Reasons. Similar comments can be made about the complaints regarding Ms Ward's behaviour in paragraphs 20 to 32 of WS(L). Relevantly, however, and speaking generally, I prefer the evidence of Ms Tomkins and Mr Ward to the evidence of Ms Ward and her witnesses wherever such evidence is in conflict.
- Notwithstanding the above comments, I do accept that Ms Tomkins could have and should have made the twins available to spend more time with Ms Ward in the first half of September 2006. Clearly,
Ms Ward's time with the children should have taken priority over any commitments that they may have had to attend at the ABC nursery on Fridays. Similarly, Ms Tomkins' explanations for not making the twins available on the Father's Day weekend (being 2 and 3 September 2006) and on Mother's Day (13 May 2007) were unsatisfactory. Still, I accept Ms Tomkins' evidence to the effect that she will not adopt the same attitude in the future, and that she regrets the relatively "hard line" that she took at those times. In response to questioning by Ms Gillies about events in September 2006, Ms Tomkins said:
- I would (do things differently today if I had the chance). ... (It) was very difficult at that time trying to get the children into a routine and get them into my life and juggle my children around and my family and Ms Ward and her family as well, and it was just really difficult and I really was still learning to sort of fit it all in and I do know now that I did make that mistake and I would do it differently.
- At the completion of her evidence, I asked Ms Tomkins some questions about the various pressures that she has experienced. She has her own family (including a new grandchild), which obviously requires time and application on her part. At the same time, she is responsible for the care of the twins, and she understands that she has obligation to ensure that they continue to have a relationship with Ms Ward and her family. I asked her whether she felt confident that she would be able to deal with the various pressures arising from these commitments and obligations, particularly after the completion of these proceedings when the court is no longer overseeing arrangements. Ms Tomkins responded that she feels comfortable that she will be able to deal with the situation. She recognised, however, that things would be easier for all concerned if she and Ms Ward could have a better relationship than they currently enjoy. She said that "it really has been quite strained and it doesn't need to be this difficult ... There was no need for it ever to be this difficult." She emphasised, however, that, in spite of their differences, she and Ms Ward have continued to communicate with each other.
- Regrettably, some of the examples referred to by Ms Kirkman-Scroope in the list of complaints to which I have referred say more about
Ms Ward than they say about Ms Tomkins. For example, Ms Kirkman-Scroope refers to contact commencing late on 24 or 25 March 2007 because the twins were ill from the air travel (and Ms Tomkins was in the process of seeking medical advice). The fact of the matter is, however, that during her cross examination of Ms Tomkins,
Ms Kirkman-Scroope initially suggested to Ms Tomkins that the late commencement time was because Ms Tomkins had forgotten to book tickets. When Ms Tomkins denied that she had forgotten to book tickets, and explained that she had booked the first available tickets that she could get, Ms Kirkman-Scroope then changed tack and suggested that Ms Ward should have obtained the medical treatment for the twins (instead of Ms Tomkins). In my opinion, Ms Tomkins' response to that suggestion was reasonable and understandable. She said that she was responsible for the children's care, that the children were very upset and distressed and that they simply did not know
Ms Ward all that well at that time (irrespective of the fact that Ms Ward is their mother). She also said that the twins were very “clingy” to her -- which Ms Kirkman-Scroope accepted would be "natural".
- I accept Ms Tomkins' evidence to the effect that the children were unwell on the occasion referred to in the previous paragraph, that the doctor said that they should be kept quiet, and that she was acting in their best interests in delaying the commencement of contact at that time. There is simply no evidence of this event being "a further example of Ms Tomkins wanting to 'take charge' and deal with the children's medical issues without any assistance or input whatsoever from Ms Ward". In my opinion, Ms Tomkins acted in a sensible and responsible manner, and I have no doubt that she would have been roundly criticised by Ms Ward if she had simply delivered the twins to her in their unwell and distressed state. Ms Kirkman-Scroope's criticism of Ms Tomkins for her actions on this occasion reinforces the view that I have formed to the effect that, unfortunately, Ms Ward's approach to spending time with the twins (and having them live with her) has not been consistently child focused.
- By way of further example, Ms Kirkman-Scroope submits that
Ms Tomkins somehow acted improperly in raising with Ms Ward's solicitors (following contact on 21 and 22 July 2007) the fact that the twins were not wearing their hats when they were collected. During the course of her evidence, however, Ms Tomkins explained that she had asked Ms Ward to make sure that the children kept their hats on because it was very cold and because the twins "have a lot of problems with their ears and their chests". Ms Tomkins simply wanted to ensure that the children's ears were kept out of the wind. Although the children were unwell when Ms Tomkins collected them after contact with Ms Ward, Ms Tomkins did not suggest that Ms Ward's actions had caused the children to become unwell. Rather, she said that causing the children to wear hats prevents the wind from "going in their ears and making them even sicker".
- When dealing with the above criticism, Ms Tomkins was at pains to point out that she was not suggesting that Ms Ward does not take good care of the twins. In my opinion, Ms Tomkins had simply sought to implement preventative measures to ensure that the children would not become unwell, or more unwell than they already were. She was entitled to feel some frustration when she became aware that her advice in relation to the wearing of hats had been ignored. After all, notwithstanding the fact that Ms Ward is the twins’ mother, it falls to Ms Tomkins to care for them on a day-to-day basis, and it is to her that they turn when they are feeling unwell or uncomfortable (when they are not with Ms Ward, of course).
- Ms Kirkman-Scroope also makes reference to the contact period that was to occur on 28 and 29 July 2007. She seems to suggest that
Ms Tomkins acted unreasonably in cancelling the contact period, and asserts that Ms Ward did not know that the contact would not proceed prior to arriving in Newcastle immediately prior to its commencement. I am not satisfied, however, that Ms Kirkman-Scroope's submission accurately summarises the evidence before me. The matter is dealt with in paragraph 15 of Ms Tomkins' affidavit sworn 25 September 2007, and in the letter from Ms Tomkins’'s solicitors to the ICL and to Ms Ward's solicitors dated 23 July 2007 (a copy of which is annexure D to Ms Tomkins' affidavit). Ms Tomkins was also cross-examined about the incident. It is clear that the cancelling of the contact period did not occur in a vacuum. It is also clear that Ms Tomkins proposed that Ms Ward spend time with the children in Ms Tomkins' home from 9 a.m. to 4 p.m. on each of the two days -- with Ms Tomkins to be absent from the house and another supervisor present instead.
- In relation to the contact period on 11 and 12 August 2007,
Ms Kirkman-Scroope submits that the contact only took place because Ms Ward "had uncovered (Ms Tomkins’s) deceit". Once again, I reject Ms Kirkman-Scroope's submission in this regard (which, in my opinion, is unnecessarily inflammatory). On this occasion, Ms Tomkins believed that [Y] was going to have an operation on her lip at or around that time. As matters turned out, the doctor was unable to deal with the matter and requested that [Y] have an MRI. During cross examination, Ms Kirkman-Scroope suggested to Ms Tomkins that it was not until
Ms Ward took it upon herself to ring the doctor to enquire about the procedure that it became apparent that it would not be taking place (and, as a result, that contact could go ahead). Ms Tomkins said in response, and I accept, that she rang her solicitors immediately after she had attended at the doctor's surgery. She told them that [Y] did not have to have the procedure on that day and, as a result, she and
Mr Ward would travel to Queensland. Ms Tomkins also said, and I accept, that she was not aware that Ms Ward had spoken with the doctor.
- In relation to the broader family of Ms Ward and Mr Ward,
Ms Kirkman-Scroope submits, with justification, that "there can be no doubt that the family has splintered in respect of these proceedings, with various family members taking one side or the other". Ms Ward's mother supports Mr Ward's case (and hence Ms Tomkins' case); other members of Ms Ward's family apparently support her case (although I note that neither her father nor her other siblings swore affidavits or otherwise gave evidence on her behalf).
- Ms Kirkman-Scroope also submits that "the finalisation of these proceedings may allow the dust to settle on the family relationships and pave the way for some repair process". In theory, there is no reason why the dust cannot be allowed to settle following the finalisation of the proceedings, whether Ms Ward perceives herself as successful in them or not. Unfortunately, there is at least a possibility that Ms Ward (and some of those supporting her) may not be minded to allow the dust to settle if Ms Tomkins' case is successful.
- Overall, I am satisfied that Ms Tomkins is willing and able to facilitate, and encourage, a close and continuing relationship between the twins and Ms Ward. For reasons explained elsewhere in this judgment,
Mr Richards is in a different position. I am less satisfied that Ms Ward would be willing to facilitate or encourage a close and continuing relationship between the twins and Ms Tomkins if the twins were to live with Ms Ward. I accept, of course, that Ms Tomkins is not the twins’ mother, but they are primarily attached to her and she is their psychological parent. A failure on Ms Ward's part to encourage and support an ongoing close relationship between the twins and
Ms Tomkins would not be in their best interests. In all the circumstances, therefore, I conclude that this factor favours
Ms Tomkins' proposals over Ms Ward's proposals.
Effect of changes in children's circumstances
- Ms Gillies submits, and I accept, that placing the twins with Ms Ward would be a traumatic event for them. Ms Tomkins is clearly their primary attachment figure.
- Mr Robinson confirmed that it would be ideal for the twins’ attachment to Ms Tomkins not to be broken for at least the first three years of their lives, and preferably up to five years. He also said (not surprisingly) that it is better not to sever the children's attachment to their primary attachment figure at all -- but if severance must occur, then it should occur as early as possible in the children's lives.
- In relation to attachment theory generally, Mr Robinson agreed that the first few years of a child's life are formative – in relation to the child's personality, emotional resilience and psychological health. From the age of about three to five, children start to develop relationships with other people and to expand their horizons. They are able to develop in this way if they have had a secure primary attachment. Such an attachment cannot be transferred to another person.
- In the present case, a problem arises because Ms Ward cannot offer (through no fault of her own, of course) a single, identifiable individual as an alternative attachment figure to replace Ms Tomkins. In order to provide suitable care and supervision for the children, a team of carers is required. There can be no doubt that it would be extremely difficult for the twins to transfer their primary attachment from Ms Tomkins to what is likely to be a group of people (and a potentially fluid or changing one at that).
- As Ms Gillies submits, Ms Ward's proposals envisage the twins being absent from her home six days per week (in a family day care placement). The precise details of such an arrangement are not known, save that the care would not take place in Ms Ward's home. In addition, support workers would be required to come into Ms Ward's home for approximately two hours in the morning on each of those six days, to assist in getting the twins ready to leave the house. Ms Gillies also submits, and I accept, that a change of this nature necessarily means that the twins will be removed from a relatively stable home environment and placed, instead, in one which "sounds chaotic and fluid".
- There appears to be no prospect of Ms Ward being able to cope with the care of the twins without the very significant assistance to which reference has already been made. Ms Gillies submits, and I accept, that as a consequence of the requirement for a number of people and organisations to act as support workers for Ms Ward, there would be an unacceptable level of confusion and displacement in the lives of the twins. The consequences, as Mr Robinson observed, could be overwhelming for them.
- In a somewhat different context, Ms Kirkman-Scroope cross examined Mr Robinson regarding the impact on the twins of the long hours that they would be expected to spend in family day care (or otherwise in the care of others) if they were to be placed with Ms Ward. Mr Robinson said that, although children are often placed in day care for relatively long hours, "that doesn't make it right". In his opinion, such an arrangement cannot match one which involves the children being with their primary carer. He then pointed out (correctly, of course) that one is not considering Ms Ward's proposed arrangements in a vacuum (as it were), and that what is involved is a comparison – and a realistic one – between the arrangements proposed by Ms Ward and the arrangements proposed by Ms Tomkins. Ms Kirkman-Scroope's questioning continued as follows:
- Ms Kirkman-Scroope: ... Let me ask you this, does that trump, if I can put it in those terms, the children's biological identity? ... You're saying, if I understand your evidence correctly, (that) if they are left in their mother’s care and she was having them in long day care six days a week, ... that's not ideal because in this situation we have another carer in New South Wales who can be with them for many more hours in the day than that.
- Mr Robinson: That's right.
- Ms Kirkman-Scroope: (So my question is), is that more important than their biological roots?
- Mr Robinson: Yes.
- Ms Kirkman-Scroope: (I'm asking you) how important the biological identity is for (the twins’) psychological development? (In other words), who their parents are and how they come to be hypothetically in the care of someone who is not a relative. That's what I'm getting at.
- Mr Robinson: Could I just sort of perhaps draw on the field of adoption. Maybe that could be a good example. ... I've seen a lot of adopted children as they go into adulthood still want to ... know their biological parents. So it is important from that perspective, I think, but it doesn't mean that ... they would prefer to live with the biological parent if there's been a good attachment to the adoptive parent. ... So, ... if you are wanting to know (the answer to) the question of how important is biological identity, I think there is ... some importance to it but it doesn't outweigh the psychological parenting.
- Clearly, Ms Tomkins is the twins’ psychological parent. As for the reference to adoption, it needs to be said (as I observed during
Ms Kirkman-Scroope's cross-examination of Mr Robinson) that there is no suggestion of Ms Tomkins (or anyone else) endeavouring to adopt the twins, or to remove Ms Ward from their lives. The case before me concerns, in essence, whether the twins should live with Ms Tomkins or with Ms Ward, and what contact Ms Ward should have with the twins if they do not live with her(and how that contact can be arranged).
- Although Ms Ward was well aware of the highly disruptive nature of the arrangements that she proposed, she was simply incapable of considering the problem from a child focused point of view. For example, the following exchange reveals an insight into Ms Ward's thinking:
- Ms Gillies: And is that (referring to the complex supervision arrangements proposed by Ms M for the weekend of 29/30 September 2007, included as part of exhibit LT7) the sort of arrangement that you’d like to put in place if you had the children come and live with you 24 hours a day, seven days a week?
- Ms Ward: No, it's not and it wouldn’t be because once the children are back I wouldn't need all these people all the time. I don't want these people there all the time. ... I know it's not fair on these kids, but facts are facts and I need their help and if my family are going to be put ... back together like they should be, well, yes, this is life, baby.
- If the twins were to live with Ms Ward, then (obviously) they would be able to form a much closer relationship with her than they presently have. As well, they would have an improved opportunity to form a close and loving relationship with [Z] and (potentially) Mr Richards’s son [M]. There was evidence that [Z] loves the twins and wishes to spend more time with them. The twins would also be closer to Ms P and would be able to see her more frequently as well. Such considerations clearly favour Ms Ward's proposals. On the other hand, there is a strong likelihood that the twins would simply be taken into care by QDOCS. If that were to occur, then there is no certainty that the twins would be kept together; nor is there any certainty that suitable foster parents could, in fact, be found (resulting in the children being placed in community style housing).
- As Ms Gillies submits, the result of the children being taken into care is that they would lose not only their primary attachment figure, but they would also lose each other (if, as seems likely, they are placed separately). Unfortunately, Ms Ward appears to prefer even this option to one which would involve the twins remaining with Ms Tomkins.
- In a further revealing insight into Ms Ward's ability to prioritise the twins’ best interests, Ms Gillies refers to the following exchange:
- Ms McDiarmid: But just tell me again why you think it would be better that the children ... be placed in foster care than remaining where they are?
- Ms Ward: Look, okay, I know ... they need stability and that, and that they don't want to be handed around. I don't want to see my babies ... going to other people. I just want them home with me. I just want to be able to mother my babies and look after them.
- Ms McDiarmid: Why (do) you say it's better if they end up being placed in foster care; why is that better than the present arrangement?
- Ms Ward: There is only one reason, and I know -- all right, like you said before, it's probably just my own selfish reasons, in a way -- I just want to be involved with my babies. I want to be able to hug them and take them out, and play with them.
- Ms McDiarmid: Yes?
- Ms Ward: You know, every baby deserves that right.
- Ms McDiarmid: So what you've said is it’s better for you. Do you think it's better for them?
- Ms Ward: I think it is. Why? Don't you think it's better for a baby to be with their mum?
- Ms McDiarmid: But what we are talking about ... is that they're not going to be with you; you're going to be having some limited time, supervised by the department, if they’re placed in foster care?
- Ms Ward: Yes, all right, okay, I know, all right. That was like when they first rang me when I was pregnant. I didn't take them seriously. I thought they couldn't do this to me. You know, having a disability isn't that bad, it's just the way people treat you. You know, I have coped with this disability since I was a kid. It's fine. But it's just the people that make it hard.
- Ms McDiarmid: Well, just finally on that point: would you agree with me that what you've told me is that it amounts to saying that it's better for you if the children come back to Queensland and are placed in foster care, but you haven't told me why it's better for them?
- Ms Ward: The only thing I can say is, yes, it is -- I am being selfish ... but indirectly I am not being selfish. I want a better relationship with my babies -- with my kids -- and I want them to get to know me and love me and know me as their mum. And I can't see that happening while ever they are in Sydney. I regretted ... letting them go. I have regretted it every day. It has been like a living hell for me. And you wonder how you're going to get through every day. Because ... no baby deserves to go through this, I know. And they don't deserve to be put into foster care. And that's where, yes, I suppose I am being a bit selfish, yes. But I just want the chance to build a relationship with my babies and get to know them.
- Ms Gillies submits, and I accept, that Ms Ward's "self referential focus in giving (the above evidence) is breathtaking". But Ms Gillies does not stop there. She argues that:
- ... it is horrific that (Ms Ward) sees this potential arrangement (being the arrangement that is likely to adhere if QDOCS takes the twins into care) as being superior to the one that currently exists. If she honestly holds that view, it could only have been arrived at by using her needs as the sole focus. This view can only speak against (Ms Ward's) whole case. Significantly, this aspect of her case is not coloured in any way by her physical condition or her disability.
- Whilst (Ms Ward) sees this case as being one of discrimination against a disabled parent, her position in this area shows that if she had no physical disability at all, her parenting capacity is so seriously impugned that it is submitted that the court would still have grave doubts about having the children live with her.
- I am not inclined to accept Ms Gillies’ argument as contained in the passages quoted above, which overstates the position. The fact of the matter is that the court must take the parties as it finds them. Ms Ward's disabilities, and her state of health, formed the subject of considerable evidence during the course of the trial. If she had no such disabilities, and if her state of health had been other than it is, then the case would never have come before the court (or, alternatively, it would never have come before the court in the way that it has). Almost certainly, QDOCS would not have threatened to remove the twins from
Ms Ward's care shortly after their birth, Ms Ward would not have been required to demonstrate her capacity to care for them on a full-time basis and they would never have been placed in Ms Tomkins' care when they were only five weeks old.
- There is nothing to be gained by speculating about the potential strengths or weaknesses of Ms Ward's case in such circumstances. For what it is worth, however, I am prepared to record that I have no doubt that Ms Ward's attitude to the twins, and to the responsibilities and duties of parenthood, has been deeply affected by her disabilities and state of health. I accept that she desperately wants to hold the twins, to cuddle them, to be available for them when they wake up in the morning and to put them to bed at night; she sees it as her right to be able to look after them at all times, and she genuinely believes that it is in their best interests to be cared for by their mother (as opposed to somebody else). She perceives, in many ways, that the current proceedings manifest a form of discrimination against her. She believes, probably correctly, that the twins would never have left her care if her disabilities and her state of health were not as they are. But the bottom line is that it is the twins’ best interests that comprise the paramount consideration for the court, and Ms Ward's best interests (and, indeed, her genuine wishes and understandable sensitivities), whilst not irrelevant, can never be determinative -- even if Ms Ward and some her witnesses seem to think that they should be.
- Ms Kirkman-Scroope submits, in relation to this factor, that "the most important question is how a change in the children being separated from Ms Tomkins might be facilitated rather than whether or not the change of itself should occur". For the reasons that I have given above, it seems to me that Ms Kirkman-Scroope's submission in this regard ignores the realties of the case before the court. It assumes that it is a "given" that the twins should be placed in Ms Ward's care either now or at some time in the near future. Regrettably (from Ms Ward's point of view), such an assumption is unfounded. That is not to say, of course, that it will never be in the twins’ best interests to live with Ms Ward, but I am obliged to decide the case before me on the basis of the evidence that has been presented. As is clear from these Reasons, some of the factors that I am required to take into account favour
Ms Ward's case, but other factors favour Ms Tomkins' case. I have done my best to consider and balance all relevant factors, and the conclusion that I have reached is set out below.
- Ms Kirkman-Scroope also submits that "(Ms M’s evidence) is probative of the fact that (24/7) support mechanisms can become available upon the children being returned to Ms Ward (but in the absence of an order placing the twins in Ms Ward’s care) exactly who those supports might be, either by agency or by individual's name, is merely hypothetical at this point in time”. I have dealt with Ms M's evidence elsewhere in these Reasons, and I am not prepared to accept that her evidence can be interpreted in the way suggested by
Ms Kirkman-Scroope. Ms M was not an impartial witness; she clearly presented as an advocate for Ms Ward. In my opinion, for the court to place the twins with Ms Ward without knowing chapter and verse (as it were) about the proposed 24/7 support mechanisms would be to unnecessarily expose the twins to a serious, and obvious, risk of being taken into foster care by QDOCS.
- Unfortunately, Ms Kirkman-Scroope suggests that Ms Ward, having accepted that she requires significant support if the twins are to be placed in her care, "is then criticised as a parent who is not looking after her children's best interests by having a procession of people through her house". Ms Kirkman-Scroope also suggests that
Ms Tomkins "cannot have it both ways" and that Ms Tomkins "should not benefit". The suggestion is that Ms Tomkins is arguing that:
- Ms Ward cannot care for her children without support, and
Ms Tomkins will not allow her to care for them until she gets support (on the one hand); and
- even if Ms Ward gets support, the number of people the children would be exposed to is unsafe for them, and therefore they should not be placed with her (on the other hand).
- Ms Ward cannot care for her children without support, and
- I reject Ms Kirkman-Scroope's submission in this regard. It is indicative of Ms Ward's self referential focus (and her ongoing insistence upon accusing Ms Tomkins of having “stolen” the twins from her) that she has seen fit to personalise the perceived alternatives in this way. The fact of the matter is that the court is not concerned with "punishing" or "rewarding" either Ms Tomkins or Ms Ward (or anyone else). The best interests of the twins comprise the paramount consideration in the case, and it is they who should "benefit" from the arrangements proposed by the parties. Without ignoring the legal principles to which I have referred earlier in these Reasons, and at the risk of oversimplifying the task now before the court, if Ms Ward's proposals (in the broadest sense, and taken into account with all other relevant factors and considerations) better promote the twins’ best interests than Ms Tomkins' proposals (in the broadest sense, and taken into account with all other relevant factors and considerations), then they should be placed in her care. If the reverse is the case, then they should remain with Ms Tomkins.
- Overall, and on balance, this consideration clearly favours
Ms Tomkins’ proposals over Ms Ward's proposals.
Practical difficulties and expense associated with contact
- Given the geographical separation between Ms Ward's home and the twins’ place of residence, and given the parties’ very limited financial resources, this consideration is clearly a relevant factor. As well,
Ms Ward is responsible for [Z]'s care, and she must make arrangements for him each time that she travels to New South Wales to visit the twins without him. For what I accept are valid and practical considerations, Ms Ward is unable to have [Z] accompany her on each occasion that she visits the twins. It follows that the twins are unable to spend as much time in [Z]’s presence as might otherwise be the case, and that the development of their relationship with him has therefore been impeded to some extent. Clearly, it is in the twins’ best interests to develop a close and loving relationship with [Z].
- At the same time, Ms Ward has (understandably) found it tiring and stressful to have to travel backwards and forwards to New South Wales on a regular basis. Ms Ward has also had to deal with [Z]’s feelings of resentment and exclusion stemming from the fact that she is spending regular time with the twins in New South Wales without him.
- I also accept that Ms Ward does not drive and is reliant on others (or on public transport) to travel significant distances. There can be no doubt that travelling to Newcastle from the Gold Coast (and back again) on a regular basis places a considerable strain on her.
- The other side of the coin is that travel from New South Wales to Queensland is also difficult for Ms Tomkins (and, most importantly, for the twins). I accept that the twins do not travel well -- whether by air or by car -- and that the process of delivering them to an appropriate location to enable Ms Ward to spend time with them is tiring and relatively complex (given that it also involves Mr Ward, and given that Ms Tomkins and Mr Ward must remain in the vicinity while the twins enjoy their weekend time with Ms Ward).
- Clearly, it is the twins themselves who must do much of the travelling. At the end of the day, any practical arrangement that would have the effect of reducing the amount of travel that the twins must undertake (whilst still enabling them to develop a close and loving relationship with Ms Ward and [Z], and otherwise promoting their best interests) should be considered favourably.
- I accept that, taken in isolation, this consideration favours Ms Ward's proposals. After all, placement of the twins with Ms Ward would overcome the difficulties associated with her regular travel to New South Wales (and would make it immeasurably easier for her to establish and maintain a close and loving relationship with the twins).
- I find, however, that the problems to which I have referred can be ameliorated -- to some extent, at least -- if the ICL’s proposals (or some variant thereof) are implemented. Further, this consideration must be approached in the light of the court's obligation to determine what is in the children's best interests. The totality of the evidence before me (and, in particular, the evidence relating to Ms Ward's disabilities and health difficulties) assists to place this consideration in its proper context.
- Ms Gillies submits, and I accept, that any arrangement that does not allow Ms Ward an adequate opportunity of being able to take [Z] with her when she visits the twins is likely to fail when tested against the requirement that the twins’ best interests be regarded as the paramount consideration. Ultimately, [Z]’s continued exclusion from Ms Ward's contact periods with the twins will simply exacerbate his feelings of resentment -- which will, in turn, impact negatively on his relationship with Ms Ward (and, conceivably, the twins). Unfortunately, and as
Ms Gillies submits, the court can have little confidence that Ms Ward will be sufficiently sensitive to [Z]'s needs in this regard to adequately address his concerns. The court's lack of confidence in this regard stems from Ms Ward's apparent inability to see the problem from [Z]'s point of view.
- The ICL’s proposals (involving, as they do, a scaling back of the amount of contact between Ms Ward and the twins) assist to maximise the regularity of contact, if not its frequency. There is less likelihood of one party or another becoming frustrated or disappointed with the other party's attitude to the implementation of contact arrangements, and less likelihood of the contact arrangements themselves having to be adjusted or cancelled altogether, if a more manageable regime is adopted. There can be no doubt, for example, that if Ms Ward were to continually miss time with the twins (for whatever reason), then significant disruption would occur in Ms Tomkins' household. Further, as the twins grow older, their sense of disappointment is likely to increase (and, obviously, to impact adversely on them) each time a contact arrangement is cancelled at short notice, or if Ms Ward simply does not attend.
- As Ms Gillies submits, the Queensland time proposed by the ICL mirrors in frequency that which is proposed by Ms Tomkins.
It provides "a bare minimum of time that Ms Ward will see the children if she for some reason does not avail herself of the New South Wales time."
- At one stage, Ms Ward proposed that she would relocate to Newcastle. On the evidence before me, it is clear that that move is unrealistic.
Ms Kirkman-Scroope concedes that "working against (Ms Ward's proposal to relocate are her) imprecise living arrangements if she were to move to Newcastle and her evidence that [Z] is opposed to such a move". None of the parties suggests that I should give the Newcastle proposal any serious consideration. As Ms McDiarmid submits, there is "simply a complete absence of evidence as to how (it) will work".
- Overall, however, and on balance, this factor clearly favours Ms Ward's case.
Capacity to provide for the children's needs
- I refer to my discussion of Ms Ward's physical ability to care for the twins earlier in these Reasons. Ms Ward is simply unable to adequately care for the children without 24/7 assistance, or something very close to it. To her credit, Ms Ward conceded that she requires such assistance (although she suggested that the assistance would only be required in the short term).
- As Ms Gillies submits, Ms Ward's application for orders to the effect that the twins live with her on a full-time basis is made in the following circumstances:
- Ms Ward does not have 24/7 assistance (although she concedes that she needs such assistance -- in the short term, at least);
- Ms Ward proposes that the twins go to family day care for six days each week;
- Ms Ward knows that there is a good chance that the twins will be taken from her by QDOCS and placed into care;
- Ms Ward knows that if the twins are indeed placed into care, then they might not be placed together (and they might be placed in a community-type house); and
- Ms Ward says that she is prepared to accept the risks associated with the children being taken into care by QDOCS because she perceives that she is likely to see more of the twins if they are in the Department's care than if they are in Ms Tomkins' care.
- Ms Gillies submits, and I accept, that in the light of Ms Ward's attitude as described in the preceding paragraph, the court should properly hold concerns regarding Ms Ward's capacity to provide for the twins’ emotional needs.
- A further example of Ms Ward's capacity (or lack of capacity) to provide for the twins’ emotional needs comprises the evidence relating to the arrangements for the christening of the children. Ms D confirmed that Ms Ward had always wanted to have the twins christened, and that Ms Ward made arrangements for the christening to take place. Ms D said, and I accept, that neither she nor Ms T made the arrangements.
- According to Ms D, Ms Ward was too sick to travel to Newcastle on the weekend that the christening was to take place.
- It appears from Ms D's evidence that the christening was to have been a relatively low-key affair. What is clear, however, is that neither
Ms Tomkins nor Mr Ward was consulted by anyone, and they were certainly not invited to participate. It appears to be no more than chance (in the form of Ms Ward's illness) that prevented the christening going ahead. As Ms Gillies submits, for Ms Ward to have excluded
Ms Tomkins (who is the twins’ primary carer, and primary attachment figure) from the proposed christening reflects poorly on Ms Ward, and on her ability to provide for the twins’ emotional needs.
- Of course, the twins are not Ms Ward's only children. Her capacity to provide for [Z]'s needs in the broadest sense serves to provide some illustration of her capacity to provide for the needs of the other children. In this regard, evidence was led regarding Ms Ward forgetting to give [Z] his ADHD medication. It was not to her credit that she effectively blamed [Z] (who was then aged approximately 9) for his failure to take his medication from time to time. She also effectively blamed [Z] for failing to take books or other items to or from school.
- Further, and as Ms Gillies submits:
- Repeatedly in her evidence, Ms Ward made assertions that she was on her own with [Z] and was bringing him up without assistance. The court heard a wealth of evidence about assistance Ms Ward receives in parenting [Z] from Mr P, Ms P and organisations that come in to help Ms Ward get [Z] ready for school. The lack of insight or acknowledgement about the assistance that is received ... reflects negatively on Ms Ward's emotional capacity for parenting.
- Ms Kirkman-Scroope submits that Ms Ward has "successfully parented [Z]". She also emphasises the fact that [Z] remains in Ms Ward's care.
- Like Ms Gillies, Ms McDiarmid strenuously challenges the suggestion that Ms Ward "successfully parented [Z] as a single parent, and is therefore capable of raising the twins". She submits:
- The evidence established that Ms Ward lived with Mr P for some years after [Z]'s birth and that he assisted in [Z]'s care. She has also been greatly assisted by her mother, Ms P, with whom [Z] has a close relationship. There is ample evidence to suggest that [Z] has not been well-managed behaviourally by Ms Ward and that she has not met his physical and emotional needs. This evidence simply cannot be ignored or overlooked. ...
- Ms McDiarmid also submits that Ms Ward "has exposed [Z] to violence and abusive behaviour in her relationship with Mr Richards, and to highly inappropriate behaviour by Mr P, who is described as [Z]'s father".
- Notwithstanding Ms Gillies and Ms McDiarmid's submissions (which are substantially accurate), I accept that Ms Ward has parented [Z] adequately, and acknowledge that he remains in Ms Ward's care. I also accept that, generally speaking, [Z] is a relatively healthy boy who is well cared for, and who loves his mother and has a good relationship with her. These are not insignificant factors, and they certainly do not harm Ms Ward's case. But [Z]’s best interests do not comprise the paramount issue in these proceedings. Ms Ward's capacity to parent [Z] is not decisive when focusing, as I must, on the best interests of the twins.
- Unfortunately, Ms Ward's attitude to Mr Richards seems ambivalent. Having initially supported orders designed to prevent Mr Richards from having any contact with the twins, she later seemed to adopt the view that he has every right to see them if he wishes to do so. She also sought to minimise an incident of domestic violence that Mr Richards had perpetrated upon her, and to excuse his behaviour generally. At the same time, she sought to minimise the physical discipline that
Mr Richards inflicted on his own son [M], and on [Z]. Ms Gillies submits, and I accept, that Ms Ward's apparent lack of concern about Mr Richards’s short temper and the more antisocial aspects of his behaviour “suggests that she would be unable or unwilling to protect the twins from domestic violence, actual violence and at the very least psychological abuse".
- Ms Kirkman-Scroope argues that Ms Ward and Mr Richards have never lived together and that, as a result, he will not be living with
Ms Ward if the twins are placed in her care. On the basis of the evidence before me, however, I am not persuaded that there is no likelihood of Ms Ward and Mr Richards living together in the future.
- Ms Kirkman-Scroope also submits:
- No doubt the court would have some concerns in respect of the involvement of Mr Richards in the lives of the children.
(Ms Ward), whilst she indicates that she is still in a relationship of sorts with Mr Richards, she does not live with him and never has. She has given an undertaking to the court that she will abide by any court order that effectively cuts Mr Richards out of the lives of his children and gave evidence that her children were her priority over Mr Richards.
- It is submitted that the mother can do no more than this. She acknowledges and accepts the concerns raised and undertakes not to have Mr Richards involved with the children in any capacity without a court order or an agreement with (QDOCS).
- No doubt the court would have some concerns in respect of the involvement of Mr Richards in the lives of the children.
- Although Ms Ward may not live with Mr Richards currently, she continues to have what appears to be a close relationship with him. In my opinion, she is not capable of withstanding any pressure that he may be minded to place on her (directed, for example, to the form of their relationship or to his contact with the twins). Unfortunately, I am not persuaded that Ms Ward "accepts the concerns raised (about
Mr Richards)". On the contrary, I find that Ms Ward does not accept that valid reasons exist for ensuring that the twins are not brought into contact with Mr Richards. Given that Ms Ward sees no real need to "cut Mr Richards out of the lives of his children", I find that it would be unwise, and not in the twins’ best interests, to accept her proposed undertaking.
- Under the general heading of Ms Ward's capacity to provide for the emotional, psychological and physical needs of the twins (and how
Ms Ward's physical and psychological health might impact on her capacity to parent), Ms Kirkman-Scroope suggests that there can be no doubt that Ms Tomkins and Mr Ward “deceived” Ms Ward into signing the note dated 14 January 2006, and headed "To whom it may concern". The note comprises annexure A to Ms Tomkins' affidavit sworn 31 August 2006. It reads:
- Due to the prevailing circumstances we have decided that in the best interest of our twin babies [X] and [Y] that they relocate with their uncle Mr Ward and his partner Ms Tomkins to their home on a temporary basis. We give this permission openly and without prejudice. When permanent arrangements have been made the children will be returned to our care.
- The note is signed by Ms Ward and Mr Richards.
- Ms Kirkman-Scroope argues that Ms Tomkins and Mr Ward "deceived" Ms Ward into signing of the note "because the document clearly refers to Ms Tomkins as being the sister-in-law of Mr Ward". But the note says no such thing. In my opinion, there is no merit in Ms Kirkman-Scroope’s submission. Further, although there may have been problems in Ms Tomkins' relationship with Mr Ward, the fact of the matter is that they were together in Queensland at the time of the signing of the note. Their relationship has endured since that time (although they do not cohabit on a full-time basis).
- I am not prepared to find that either Ms Tomkins or Mr Ward deceived Ms Ward in any way at or around the time that the twins were delivered into Ms Tomkins' care. Whether Ms Tomkins offered to accept the responsibility of caring for the twins (on the one hand) or Ms Ward asked her to look after them (on the other) makes no difference to the outcome of these proceedings. Ms Ward conceded that she was aware that Ms Tomkins would be caring for the twins (because Mr Ward would be working full-time), and that she was fearful of the alternative -- which was, of course, that the twins would be taken into care.
Ms Ward also conceded that Ms Tomkins has looked after the twins very well.
- I accept that the arrangement was intended to be temporary, and that its primary purpose was to avoid the possibility of the twins being taken into care. The letters and signed by Ms F on behalf of QDOCS and dated 7 and 14 February 2006 reveal that Ms Ward's fears were well founded (and that Ms Tomkins' actions in accepting responsibility for the care of the twins did indeed prevent them from being taken into care). As for the temporary nature of the arrangement, Ms Tomkins’ case is that Ms Ward has never been able to secure the 24/7 (or close to 24/7) support that she requires in order to be able to take over the primary care role for the twins. Ms Ward's case, of course, is that the twins should have been placed in her primary care whether or not she was able to obtain that support.
- As discussed elsewhere in these reasons, I find that Ms Ward remains unable to secure the 24/7 (or close to 24/7) support that she requires and that, without it, it is highly likely that QDOCS would act to remove the twins from Ms Ward's care.
- Ms Kirkman-Scroope refers to Ms Ward's evidence to the effect that, in or around May 2006, she had put in place the necessary 24/7 support to enable her to care for the twins and that, as a result, she contacted
Mr Ward and asked him to deliver the twins to her. I am not persuaded that Ms Ward had in fact arranged such support at that time. There does not appear to be any evidence (including in the affidavit material filed by or on behalf of Ms Ward) which clearly describes the nature of the alleged support and who will be providing it. But even if I am wrong in that regard, and Ms Ward did in fact have 24/7 support to enable her to care for the twins in May 2006, the findings that I have made and the conclusions that I have reached in these Reasons would not be significantly different. Not once since the matter has been before me has Ms Ward been able to demonstrate that she has practical, effective 24/7 support for her care of the twins. The fact that such support may or may not have been available for a short period in mid 2006 is, at this stage, of no more than historical interest.
- In my opinion, the true position has been accurately summarised by
Ms McDiarmid in WS(L) as follows:
- ... Ms Tomkins has been placed in an impossible position. At a time of crisis, Mr Ward’s extended family requested her to take the twins into her care. They knew she lived in Sydney. They also knew that the children were about to be placed in foster care. Ms Ward had exhausted the capacity of her own mother to assist her. Ms Ward was not respecting her mother's requests regarding handling the babies. At that time, Ms Ward actually put them in physical danger by insisting on bathing and lifting them. The options at that time were: Ms Tomkins or foster care. The significant shortcomings of foster care in Queensland were made known in the evidence of Ms F. The family as a whole recognised that the best option was a family placement.
- Ms Tomkins considered this family's request, resigned from her employment as an administration manager in a transport company, and was driven back to her home in Sydney, with the babies, by Ms Ward's father. Not only has she never received any thanks from the parents of these children for giving up life as she knew it to love and nurture their children, and to financially support them, but she has been blamed for the sad circumstances, accused of alienating Ms Ward, and berated and abused by some of Ms Ward’s extended family for not "giving the babies back" when the situation in Ms Ward's household remained virtually unchanged from when the twins were placed with Ms Tomkins.
- The commitment Ms Tomkins has made to the twins has been at great personal and financial cost to herself. She has endured various threats and even false reports being made ... all of which resulted in investigations, were malicious and obviously designed to cause maximum discomfort and anxiety for the carer of these children. (Emphasis added.)
- I have already recorded that I am not persuaded that Ms Tomkins has failed or refused to encourage the twins’ relationship with Ms Ward. In my opinion, Ms Tomkins has indeed encouraged that relationship -- in spite of a sustained campaign against her mounted by Ms Ward and her supporters. That campaign has involved constant criticism of
Ms Tomkins for allegedly "stealing" the twins from Ms Ward and has, at times, involved suggestions to the effect that Ms Tomkins has not adequately cared for the twins or promoted their welfare. At the end of the day, however, even Ms Ward conceded that Ms Tomkins has done a good job of caring for the twins. In WS(S), Ms Kirkman-Scroope acknowledges that Ms Tomkins "is able to meet the physical needs of the children, who seem to be developing at age appropriate levels", and Dr D confirmed that the twins are healthy. I find that Ms Tomkins is capable of providing for the twins’ needs in every respect (including, of course, their emotional and intellectual needs) and that she has, in fact, competently and resolutely provided for those needs.
- Ms Kirkman-Scroope submits that Ms Tomkins’ handling of the twins’ health has not been optimal. She also submits that "a logical inference that can be drawn from the evidence" is that Ms Tomkins "either fabricates or exaggerates the illnesses of the children". I do not accept Ms Kirkman-Scroope's submission in relation to either of these matters, and I have already dealt with Dr D's evidence regarding the children's travel difficulties.
- Ms Kirkman-Scroope also seems to suggest that Ms Tomkins failed or refused to provide a full account of the children's medical history to
Dr D at the time that she saw him. The fact of the matter is, however, that Ms Ward was also present when Dr D saw the children. The appointment occupied approximately 60 or 70 minutes. According to Dr D, although Ms Ward and Ms Tomkins were civil to each other, there were some minor disagreements about historical elements.
It follows that Ms Ward could have corrected any errors or omissions in Ms Tomkins’ account (including, for example, in relation to the twins suffering from asthma). Having observed Ms Ward during the course of a lengthy trial, and taking into account the totality of the evidence before me, I have not the slightest doubt that Ms Ward would not have been backwards in coming forwards (as it were) regarding anything that she perceived may have been misstated by Ms Tomkins. Further, given Ms Ward's view that Ms Tomkins has endeavoured to keep the children from her, I have no doubt that Ms Ward would have been particularly attentive to Ms Tomkins’ description of any illnesses or medical conditions that may have affected the twins’ capacity to spend time with her. Thus, I reject any suggestion that Ms Tomkins failed or refused to provide all relevant information to Dr D.
- Overall, I find that this consideration favours Ms Tomkins’ proposals over Ms Ward's proposals.
Maturity, lifestyle and background of the children and the parties
- Ms Ward is Roman Catholic. Ms Tomkins (who is Christian, but not Roman Catholic) does not object to the twins being christened in
Ms Ward's religion.
- This factor might be seen to favour Ms Ward's proposals, but little was made of the subject during the course of the proceedings and, in my opinion, it is not a significant consideration.
Attitude to the children and to responsibilities of parenthood
- I have dealt with aspects of this consideration (directly or indirectly) elsewhere in these Reasons, and there is no need for me to recast previous statements in a slightly different form.
- Neither Ms Ward nor Mr Richards seems to be willing to accept any financial responsibility for the care of the twins -- and certainly not while they remain in Ms Tomkins’ care. One of the many unsatisfactory aspects of Mr Richards’s evidence comprises his responses to questions dealing with this subject. For example, I refer to the following exchange:
- Ms Gillies: ... I am going to suggest to you that in circumstances where you know ... that your daughter ([Y]) has had this spot on her lip that has needed treatment, that if you were serious about financially supporting your child that you would have sold (the car that you bought with the baby bonus) and got that money down to Ms Tomkins so that ([Y]) could have proper medical treatment; what you say to that?
- Mr Richards: Well, what I say to that is I didn't know how serious it was because no-one informed me until -- and I didn't even know how serious it was at all.
- Ms Gillies: Well, now you know?
- Mr Richards: Yes. Okay. Fine.
- Ms Gillies: The car is going to be sold, is it?
- Mr Richards: No.
- Ms Gillies: Well, why not?
- Mr Richards: Well, if Ms Tomkins wants to keep these twins, why should I -- why should I keep -- why should I finance them? They are not ... in Ms Ward's care so why should I finance somebody else that wants to keep my twins?
- I acknowledge, however, Ms Tomkins’s concession to the effect that Ms Ward and Mr Richards provided her with some funds (at the rate of, perhaps, $100 per week) for a short time after the twins commenced living with her. Ms Tomkins also said that they "chipped in" to help her buy a twin pram.
- I have already referred to a number of examples of Ms Ward's attitude generally (including her propensity to blame others for problems that might more properly be considered her responsibility). I have also referred to examples of Ms Ward's attitude and behaviour which reveal a reluctance or inability on her part to focus on the twins’ best interests. A further example in this regard relates to Ms Ward's contact with a filmmaker regarding the making of a documentary dealing with her circumstances. Ms Ward made it clear that she had no discomfort with the filmmaker filming her with the twins, although her attitude appeared to change after it became clear that the ICL strongly objected to the twins’ involvement. Ms Ward initially justified the involvement of the twins in the proposed documentary on the basis that it might "get the message across" to show people that she can look after the twins (with some assistance). She seemed to believe that it was in the best interests of the twins for the documentary to show that she is capable of caring for them. When it was put to her that it might not be in the twins’ best interests for the circumstances in which they came to be placed in Ms Tomkins’ care to be made public (and that the twins themselves might ultimately feel discomfort with such revelations about their early lives as they grow older), Ms Ward turned the reference back to herself. She implied that if the making of the documentary is likely to help her, then it is also likely to be in the twins’ best interests.
- Whilst recognising that Ms Tomkins is not a biological parent of the twins, I nevertheless find that Ms Tomkins has adopted a positive and mature attitude to the responsibilities and duties of "parenthood" (as that term relates to her care and upbringing of the twins). I accept that Ms Tomkins’ primary motivation is the promotion of the twins’ best interests.
- The bottom line in relation to this factor is that, in my opinion, and irrespective of Ms Ward's beliefs and assertions to the contrary,
Ms Tomkins can indeed be trusted to accept and successfully fulfil all the responsibilities and duties associated with parenting the twins (including the responsibility to promote a close and loving relationship between the twins and Ms Ward).
- I find that, unfortunately, Ms Ward has not always demonstrated an appropriate attitude to the twins, and to the responsibilities and duties of parenthood. I accept, however, that for her to have pursued the current proceedings to their completion demonstrates that she has considerable determination and strength of character. She has been prepared to submit herself to criticism, strain and anxiety in order to further her attempts to have the twins placed in her care, so that they can live with her and [Z] as a family.
- Ms McDiarmid submits, and I accept, that Ms Ward could have made greater efforts to have contact with the twins at various times (and particularly between the November 2006 and May 2007 hearings). For example, Ms Ward admitted that she could have used part of the baby bonus to pay for air travel to Sydney to enable her to see the children.
I have already recorded, however, that I am prepared to accept that, by and large, Ms Ward made adequate efforts to ensure that she remained in contact with the twins (and, similarly, Ms Tomkins made adequate efforts to facilitate and encourage Ms Ward's relationship with them).
- I do not doubt that Ms Ward loves the twins dearly. But Ms Tomkins loves them too. The reality is that such a sentiment is often a "given" in cases of this nature, and that (fortunately) nowhere in section 60CC (or elsewhere in the Family Law Act) is the Court required to consider whether one party loves the children the subject of the proceedings more than the other party loves them. I have no doubt that the omission of such a consideration is deliberate, because such an assessment would be virtually impossible. Generally speaking, what parties do, how they behave and the attitudes that they display towards their roles as parents or carers are far more relevant to the decision process in a parenting case, and of much greater significance, than the vague and often highly complex emotion known as love.
- Ms Tomkins fully understands her role as the twins’ carer, and she has confronted and overcome many problems in her endeavours to perform that role to the best of her ability. She, no less than Ms Ward, has shown considerable strength of character throughout these proceedings. She has approached them with maturity, empathy, understanding and a quiet dignity. She has been insulted and belittled, and accused of malevolence and villainy of the most serious kind by Ms Ward and others (who, after all, did not baulk at accusing her of stealing
Ms Ward's children). As I have observed elsewhere in these Reasons, I reject such accusations. Ms Tomkins is kind and generous of spirit, and it is indeed very sad that Ms Ward cannot see her in that light.
- During the course of cross-examination, Ms Kirkman-Scroope suggested to Mr Ward that he is angry with Ms Ward. Mr Ward replied: "No, I'm a long way from being angry with my sister". He went on to confirm that he accepts that Ms Ward should have a bond with the twins and that, in order to do so, she should be permitted to spend extended periods of time with them. I accept that Mr Ward was being truthful in both of those responses. I find that he is an appropriate support person for Ms Tomkins, and that he has accepted the responsibilities and duties associated with that task. I also find that he has the best interests of the twins at heart.
- Overall, I find that this consideration favours Ms Tomkins’s proposals over Ms Ward's proposals.
- In relation to this subject of domestic violence generally, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
- The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
- It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
- In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
- There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
- Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in s.60CC of the Family Law Act.
- As I have already recorded, in Re L, Butler-Sloss P said that:
- It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
- Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) also cited with approval the following passage from the judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
- Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
- As Butler-Sloss P summarised:
- Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
- I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs.
- Turning from the general to the specific, it seems clear that
Mr Richards has so far failed or refused to take any effective steps to “correct the deficiency in (his) character”. The evidence appears to be that he is not likely to change.
- Unfortunately, Mr Richards is deeply resentful of Ms Tomkins and those who have seen fit to support her.
- I find that Mr Richards has done nothing to “demonstrate that he is a fit person to exercise unsupervised contact”, or even, as appears from the Headways report, supervised contact. In my opinion, he has also done nothing to demonstrate that he is “not going to destabilise (Ms Ward’s) family” – or Ms Tomkins’s for that matter.
- There is no need for me to repeat other comments that I have made elsewhere in these Reasons regarding Mr Richards.
- The issue of family violence does not otherwise amount to a relevant consideration, in that it does not adhere to any of the other parties. Nevertheless, and as I have discussed elsewhere in these Reasons, the nature and durability of Ms Ward's relationship with Mr Richards is
ill-defined and uncertain. It seems clear that QDOCS has serious concerns regarding Mr Richards's involvement with the twins, and I have no doubt that it would very carefully investigate Ms Ward's domestic arrangements if the twins were to be placed with her.
Orders least likely to lead to the institution of further proceedings
- There is a strong possibility that, as the twins grow older, and as their relationship with Ms Ward develops and improves, Ms Ward will be minded to again take steps to have them live with her. I cannot predict the outcome of any application that Ms Ward might make at that time.
- The simple fact that such an application is likely to be made suggests that this consideration favours Ms Ward's proposals over Ms Tomkins’ proposals.
- On the other hand, and as Ms Kirkman-Scroope concedes, there is persuasive evidence that QDOCS will become involved if the twins are placed with Ms Ward as a result of these proceedings. Whilst it is not a "given" that the result of such involvement by QDOCS would be the removal of the twins from Ms Ward, there is a strong likelihood that such may be the result. QDOCS would have to carefully reassess
Ms Ward's parenting capacity and details of her support network. It would also have to assess Ms Ward's living arrangements and her relationship with Mr Richards (among other things).
- On the totality of the evidence now before me, I find that it is likely that QDOCS will not only reassess Ms Ward and her arrangements (in the broadest sense) if the twins were to be placed with her, but that it will also conclude that the twins should not remain in her care. In other words, the likelihood is that a decision on my part to place the twins with Ms Ward would, in effect, cause them to be taken into care by QDOCS.
- Overall, I find that the orders least likely to lead to the institution of further proceedings in relation to the twins (at least in the short to medium term) are those foreshadowed in these Reasons.
Other relevant facts or circumstances
- Ms Kirkman-Scroope concludes her submissions by emphasising the fact that Ms Tomkins "is of no familial relation to the children". She argues that, in the event that Ms Tomkins’ relationship with Mr Ward "does not withstand the test of time", then "the biological identity of the children will create some emotional difficulty for them". I am well aware, of course, that Ms Tomkins is not related to the twins. I have taken that factor into account, and find that Ms Tomkins (now) fully understands the need to promote a close and loving relationship between the twins and their mother and her family. As I have said elsewhere in these Reasons, Mr Richards, unfortunately, is in a different category.
- Beyond the above, and as I have already recorded, no counsel suggests that Ms Ward is to be preferred to Ms Tomkins as a carer for the twins simply because she is their mother and Ms Tomkins is not.
- I would add that I accept Ms McDiarmid's submission to the effect that it was never established at trial that the relationship between
Ms Tomkins and Mr Ward is at risk of breakdown. Indeed, their evidence was that they intend to marry.
- I note that Ms Gillies discusses the ICL’s proposed contact arrangements under this general heading. I accept and adopt paragraphs 179 to 182 of those submissions. Unfortunately, problems with contact (or, perhaps more accurately, problems with the arrangements associated with contact) have dogged these proceedings from the outset. I have done the best that I can in all the circumstances to outline contact orders that are –
- in the twins’ best interests;
- as practical as possible; and
- not unduly onerous on all those affected by them.
- There do not appear to be any other facts or circumstances that are of significance, and that I have not otherwise discussed.
Reconsideration of meaningful relationship and protection from harm
- Having dealt with those considerations pursuant to section 60CC(3) that I consider relevant, I shall now revisit the considerations referred to in section 60CC(2).
- In my opinion, there is little further that needs to be said. I have dealt with the twins’ relationship with the parties elsewhere in these Reasons. I recognise the benefits to the twins of having a meaningful relationship with Ms Ward and (in the unusual circumstances of this case) Ms Tomkins, Mr Ward and, for example, Ms P and [Z]. The orders that I have outlined below reflect my attempt to protect, preserve and promote that relationship.
- I have also dealt with the need to protect the twins from any form of harm that may have its genesis in Mr Richards’s actions or attitudes.
It seems to me that the possibility of QDOCS taking the children into care if they were placed with Ms Ward also represents a form of "harm" from which the children should be protected. There is clear evidence that the consequences for the twins of being taken into care would be very damaging indeed.
Conclusion as to most satisfactory proposal
- In my opinion, and
- bearing in mind that the twins’ best interests remain the overriding consideration;
- taking into account the objects and principles set out in section 60B; and
- having regard to my discussion of the section 60CC factors above,
- I conclude that, in general terms, Ms Tomkins’s proposals are more likely to be in the twins’ best interests than Ms Ward’s proposals (subject to my findings in relation to the issue of parental responsibility).
- Given that Mr Richards did not actively participate in the proceedings, and given my findings in relation to his behaviour (including my findings relating to the subject of family violence) it is clear beyond argument that the presumption of equal shared parental responsibility contained in section 61DA does not apply. But even if it did apply,
I am firmly of the view that it is not in the twins’ best interests for
Ms Ward and Mr Richards to have equal shared parental responsibility for them -- either together or in conjunction with Ms Tomkins.
- Leaving aside issues of the applicability of presumptions and their rebuttal, Ms Gillies submits that Ms Tomkins should have sole parental responsibility for the twins. She argues that –
- notwithstanding that Ms Ward and Ms Tomkins advised the court that, in their view, they would be able to communicate effectively about the twins, such communication has not occurred to date;
- Ms Ward and Ms Tomkins were unable to explain how shared parental responsibility might operate in the future;
- the fact that Ms Ward and Ms Tomkins live in different States means that there is a likelihood that Ms Tomkins will be unable to contact Ms Ward at times when it is necessary for her to make urgent decisions about such matters as the twins’ health or education; and
- Ms Ward's deep resentment towards Ms Tomkins arising out of Ms Ward's belief that Ms Tomkins "stole" the twins seems ingrained, and it follows that Ms Ward may find herself unable to work cooperatively with Ms Tomkins for the benefit of the twins.
- Ms McDiarmid (with, it would appear, some degree of reluctance) supports Ms Gillies’ submission in this regard.
- In Oscar and Traynor, Murphy J. said in relation to equal shared parental responsibility:
- It seems to me that the greater the degree of mistrust, lack of communication, disrespect and dysfunction in the co-parenting relationship, the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children's best interests.
- As discussed below, and notwithstanding the comment from Oscar and Traynor quoted above, I am not persuaded that Ms Ward and
Ms Tomkins are unable to share parental responsibility for the twins. Both have told me that they are prepared to work together for the twins’ benefit. I note, as well, that these proceedings commenced when the twins were very young indeed. The case has been fought tenaciously by all parties, but the trial finished in late 2007 and there appears to have been no further applications to the court since that time. I regard the absence of such applications as a positive development – one which indicates or implies a possible change in
Ms Ward's attitude.
- It cannot be ignored that Ms Ward is the twins’ mother and
Ms Tomkins is not. In my opinion, it is more than reasonable for
Ms Ward to share parental responsibility for the children with
Ms Tomkins. That they may live in different States is of little relevance. There are a myriad of ways in which communication between Ms Ward and Ms Tomkins can take place when issues relating to the twins’ long-term care, welfare and development arise. In any event, the need for one party to make an urgent decision regarding a child's health, education or the like can arise even where parents (or others having parental responsibility) live in very close proximity -- if, for example, the other parent (or person having parental responsibility) is away or otherwise uncontactable for a variety of reasons. Still, I would expect such occasions to be extremely rare.
- I recognise that there has not been a positive relationship between
Ms Ward and Ms Tomkins for almost the whole of the twins’ short lives. Indeed, their relationship has been conflictual, and significantly so. As well, Ms Ward and Ms Tomkins have not communicated about the twins in a satisfactory manner – although each now appears to accept that the other has something positive and worthwhile to offer the twins.
- Ms Ward’s actions in the past (for which she has been criticised in these Reasons) reveal that she has had difficulty adopting a child focused approach in dealing with issues as they have arisen. I am satisfied, however, that Ms Tomkins has always (or almost always) adopted a child focused approach.
- The twins’ major long-term issues include matters relating to their education, religious and cultural upbringing and health (together with their living arrangements, to the extent that changes to the same might impact on the time that they spend with Ms Ward). Their names also comprise a major long-term issue.
- In my opinion, it is in the twins’ best interests to have both Ms Ward and Ms Tomkins involved in making decisions relating to their
long-term care, welfare and development. Having regard to the concessions made by both Ms Ward and Ms Tomkins, I propose to order that they have equal shared parental responsibility for the twins. There is no reason why Ms Ward should not be permitted to have input into the sorts of issues referred to in the previous paragraph. And the fact that Ms Tomkins must consult Ms Ward in relation to these matters will hopefully ensure that she will not be tempted to take the sort of actions that have (perhaps unfairly) formed the subject of adverse comments by both Ms Gillies and Ms Kirkman-Scroope.
- Of course, an order for equal shared parental responsibility will require Ms Tomkins and Ms Ward to make joint decisions about "major
long-term issues" relating to the twins, and to consult with each other and attempt to reach agreement in order to do so. If I were to find that Ms Tomkins and Ms Ward are simply unable to cooperate with each other to the extent necessary to ensure that equal shared parental responsibility can operate satisfactorily and in the best interests of the twins, then, because the conflict that could arise from an unsuccessful or dysfunctional consultation process will almost certainly be harmful to the twins’ best interests, I should proceed to order that Ms Tomkins have sole parental responsibility. But I am not prepared to make such a finding. Nor am I prepared to find that, to the extent that there has been an inability to cooperate in the past, that inability or incapacity is likely to continue in the future.
- I will not pretend that I do not have some discomfort with the making of an order for equal shared parental responsibility. I recognise that there is a possibility that it will not work, and that Ms Ward will use Ms Tomkins’s attempts to discuss matters with her (directly or indirectly) to insult, belittle or criticise her. But Ms Tomkins said that she is prepared to give the arrangement an opportunity to work, and my hope is that, with the completion of these proceedings and the publication of these Reasons, some of the mistrust and disrespect that has characterised Ms Ward's attitude to and behaviour towards
Ms Tomkins will begin to dissipate.
- The mechanics of the consultation between the parties that is a necessary component of equal shared parental responsibility comprise a matter that should form the subject of discussion between the parties’ legal representatives.
- I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of "the Law" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the orders that I have outlined below are those that are most likely to protect the twins and advance their best interests (which, after all, comprise the paramount consideration in these proceedings).
- Subject to submissions by counsel regarding the form or "mechanics" of the same, I propose to make the following orders:
- MS TOMKINS (“Ms Tomkins”) and MS WARD (“Ms Ward”) have equal shared parental responsibility for the children [X] and [Y], both born in 2005.
- The children live with Ms Tomkins.
- The children spend time with MR WARD (“Mr Ward”) as agreed between Ms Tomkins and Mr Ward.
- The children spend time with Ms Ward as agreed and arranged between Ms Tomkins and Ms Ward, and failing agreement as follows:
- except in the month of January in each year, on the weekends of the first and third Friday in each month, from 12 noon on Friday to 5 p.m. on Sunday;
- from 2 p.m. on 24 December until 6 p.m. on 26 December in 2009, and in each alternate year thereafter;
- for a period of 7 consecutive days in January 2009, such period to be agreed between Ms Tomkins and Ms Ward;
- from 9 a.m. on the second Monday in January until 9 a.m. on the third Monday in January in each of the years 2010 and 2011;
- notwithstanding any other provisions of these orders, from
9 a.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each alternate year, commencing 2010;
- from 3 p.m. on 27 November until 3 p.m. on 28 November in 2009, and in each alternate year thereafter;
- from 3 p.m. on 28 November until 3 p.m. on 29 November in 2010, and in each alternate year thereafter; and
- upon the children commencing school, and subject to paragraph (e) below, one half of all school holidays, and being the first half of such holidays in 2011 (and in each alternate year thereafter) and the second half of such holidays in 2012 (and in each alternate year thereafter).
- Upon the children commencing school, the spend time arrangement referred to in paragraphs (d)(i) and (ii) be suspended during all school holidays, and do resume after such holidays in an unbroken cycle as if such holidays had never occurred.
- Notwithstanding any other provisions of these orders (save for paragraph (d)(v) above), Ms Ward's time with the children be suspended, and the children be returned to live with Ms Tomkins at the following times:
- from 2 p.m. on 24 December until 6 p.m. on 26 December in 2010, and in each alternate year thereafter;
- from 3 p.m. on 27 November until 3 p.m. on 28 November in 2010 (and in each alternate year thereafter) and from 3 p.m. on 28 November until 3 p.m. on 29 November in 2009 (and in each alternate year thereafter); and
- from 9 a.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each alternate year, commencing 2009.
- The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to come into contact or communicate with MR RICHARDS.
- MR RICHARDS is hereby restrained by injunction from coming into contact or communicating with the children or either of them.
- The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to come into contact with Mr P.
- The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to visit the home of MR W and/or from allowing MR W to transport the children (or either of them).
- In the event that the children (or either of them) come into contact with MR W, Ms Tomkins and Ms Ward (and their servants and agents) must cause the children to be removed from his presence immediately if he becomes intoxicated or aggressive (including verbally aggressive).
- Ms Ward’s time with the children be supervised at all times by:
- Ms P; or
- Ms D; or
- Ms T; or
- any other supervisor agreed by the parties in writing.
- All overnight periods of time spent by Ms Ward with the children (or either of them) must be spent at the home of MS P or MS D, unless otherwise agreed in writing between Ms Tomkins and
- In the event that Ms Ward resides in Brisbane/[S], then
Ms Tomkins must be responsible for delivering the children to and collecting them from the home of Ms P:
- on the first weekend in April; and
- on the first weekend in August; and
- for time spent with Ms Ward pursuant to paragraph (d)(iii) and (iv) above; and
- for the Christmas holiday periods pursuant to paragraph (d)(viii) above.
- For all other changeovers, Ms Ward must be responsible for collecting the children from Ms Tomkins’ home at the commencement of her time and Ms Tomkins must be responsible for collecting the children from Ms D’s home of at the conclusion of the time.
- If Ms Ward will not be spending time with the children in New South Wales pursuant to any of the provisions of these orders, then Ms Ward must inform Ms Tomkins of that fact, in writing, at least seven days before the commencement of such spend time period.
- The parties, their servants and agents be and are hereby restrained by injunction from:
- abusing, insulting, belittling, rebuking or otherwise denigrating Ms Tomkins, Mr Ward, any supervisor,
Ms Ward or MR RICHARDS; and
- discussing these proceedings,
- in the presence or hearing of the children (or either of them), and from permitting any other person to do so.
- abusing, insulting, belittling, rebuking or otherwise denigrating Ms Tomkins, Mr Ward, any supervisor,
- Ms Tomkins and Ms Ward must advise each other, in writing, at least 7 days before any change to their residential address, mobile telephone or landline number.
- Ms Tomkins and Ms Ward must provide each other with any necessary authorization needed to obtain information from any school, child care facility, medical practitioner, therapeutic consultant or third party that the children might attend for educational, psychological or medical purposes.
- Ms Tomkins and Ms Ward must advise each other, in writing, at least 7 days before any scheduled medical, psychological or therapeutic appointment that both or either of the children are scheduled to attend, and both be at liberty to attend same.
- In the event that either child requires emergency medical treatment, Ms Tomkins and Ms Ward must each advise each other, as soon as practicable, of such requirement, and include details of the attending medical practitioners, their contact details and the condition for which treatment is required.
- At least 3 months prior to the children being enrolled in any educational facility, Ms Tomkins must provide Ms Ward with details of the facility, proposed enrolment details, and the contact details of the facility.
- Ms Tomkins and Ms Ward must maintain a communications book, which shall pass with the children.
- The children be baptised in the Roman Catholic faith, unless otherwise agreed in writing between the parties.
- Ms Ward be responsible for taking all steps to give effect to paragraph (x) above, and do provide Ms Tomkins with 28 days notice of the date, time and location of that baptism, and
Ms Tomkins and her invitees be at liberty to attend and participate as appropriate in the ceremony, and any celebration.
- Ms Tomkins and Ms Ward must cause each of the supervisors to be furnished with a copy of these Orders prior to them supervising any period of time.
- The independent children’s lawyer do provide to the Department of Child Services, Queensland, and the Department of Community Services, New South Wales, a copy of these Orders as soon as practicable.
- In these orders, a requirement that notice be given in writing can be adequately satisfied by the sending of an SMS text message or e-mail.
I certify that the preceding three hundred and thirty-eight (338) paragraphs are a true copy of the reasons for judgment of Walters FM
Date: 12 January 2009