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03 October 2023

The rule of three in children’s matters

In this video, CGW family law partner Justine Woods talks about her theory of 'the rule of three' in parenting matters.

Video transcript

Hello, hello, everyone. I’m Justine Woods. I’m the family law partner at Cooper Grace Ward. And my topic today is the rule of three in parenting matters.

Tassell and Bannister facts

Now, this is my own pet theory. It is not judicially endorsed. I have given videos on the same rule of three, but regarding property settlement matters in another context. But I thought I’d explore it today regarding children’s matters in the family court system. My starting point is a recent case of Tassell and Bannister. Now, the facts of that case is that there were two children. They lived by consent, informal consent with their mother following separation and had regular and substantial time with their dad, mostly alternate weekends and holidays. No particular problems for the first seven years. The mother had always suffered with very significant mental health issues, which were described as ‘numerous’ in the material. But then she also embarked upon a business venture which the court described as ‘selling substances of dependence’, including an illegal substance named ‘Q’, which I would love to know what it is, but I don’t. And that went along, and at some point she was threatened by a drug affected person in her store with a knife and the children were exposed to that. So, the momentum starts to build. The husband had joined the armed forces as a transport worker and at the completion of his training it was understood that he was going to be posted in various locations. And then the mother took up with the ominously named ‘Mr. D’, which is of course, anonymised in the judgment, who was a confessed drug user and dealer and by the time the matter came to trial, had also been convicted of indecently dealing with his own children. So, the father brought the matter to court to ask for orders that the children, reversing the arrangement that had been in place for seven years, that the children live with him and that he be permitted to relocate with them wherever the armed forces posted him.

Family report

Now, the family report must have been a very sad document, as most family reports are, because it came through in the judgment that the children plainly loved both parents, were sad about either set of proposals which, given their age, they absolutely understood that they would be mostly with one parent and only seeing the other on holidays or when they happened to be in the same town. And the family report writer described the children as feeling intense loyalty to both parents and to telling each parent effectively, not in these words, what they wanted to hear when they were with them. And one of the children really did prefer to stay with mum. Now, what happened in that case is that working through the factors, so mental illness, not disentitling conduct, maybe the business, not such disentitling conduct, but there were issues of neglect and the ability to supervise the children. And then of course with the ‘Mr. D’   issue, because the judge found that there should be an injunction issued prohibiting the children from coming into contact with Mr. D. So, at the end of that process, the court ordered that the children live with the father, be permitted to move with him throughout Australia to any postings, see the mother over holidays and wherever they happen to be in the same environment. And it just made me think of when I was a first year lawyer in 1995, we did some training with a now late judge and the factual scenario was about a similar sort of thing with the mother having a wildly unsuitable new partner and all the young lawyers, because we were practicing giving advice and all of the young lawyers, including me, had basically, we convinced the other solicitors who were playing the clients to give up their wicked new boyfriend or girlfriend. And the judge said, that doesn’t really often happen. That’s not what real life is like. And so I think it’s illustrative of how you can have two things against you. You can’t have three.

Children’s best interest

And if the court must decide the children’s best interest as the paramount consideration and there are two quite oddly paramount considerations currently under the Family Law Act, that the children should have a meaningful relationship with each parent and that they should be protected with risk. So, there was no question here that the children loved both parents, that both parents could, in an ordinary course of events, look after the children and meet their needs. But the mother could not do so to the extent that the father could. And in her evidence, she said, and I’m sure she was a terrible witness with great respect to her, said that Mr. D was still, even though they had broken up, that he was still her best friend and helped her every day. So, I don’t know that necessarily, even without the third thing, whether the mother could have been successful in retaining the children. But the point I’m trying to illustrate, and I’ve had it in so many matters of my own for clients. Yes, you can have mental illness. You can even be giving the alcohol bit too much of a nudge. If you introduce, for example, illegal drugs I’ve had in one case or, you know, the deadly partner or sometimes the adult or teenage children of your partner who have concerning behaviour.

Introducing a third element becomes difficult

If you introduce a third element, you’re kind of asking for difficulty. So, I try and encourage people, people often say to me, but I’ve you know, been hospitalised, I’ve got these issues in my past, and that’s that’s fine. If you’re getting treatment, if we’re managing it, if you’re compliant with your program, we can manage it. You can probably even manage a second issue. A third is going to be very difficult indeed to frame in a way that’s consistent with children’s needs being met. Now, on a slightly more light-hearted note, and I have great respect for the hunting, shooting, fishing community, and I intend no aspersion to be cast on them. But this would be a good case for parties to read.

Hutching and Noyer Case

It’s the Hutching and Noyer case again, a recent decision where there was a six year old little girl and the parties had agreed on her arrangement, so they had final consent orders about living with Mum, seeing Dad for four nights a fortnight and school holidays and again a little similar to Tassell and Bannister, the court found both parents could meet the child’s needs day to day. No difficulty whatsoever. But Dad came from a hunting, shooting, fishing family and again, another terrible witness. He quite openly told the court that he had taken his older child hunting with knives and shooting with guns when that child was only seven or eight and wanted the permission of the court and of the mother, which she declined to give, to take the six year old on these trips. And then they also wanted to be able, in the tradition of the father’s family, to then skin and cook and eat the animals that they shot. So, long discussion by the judge and relying on the medical evidence about the child who had ADHD and was found to be more vulnerable to impulse and to not necessarily appreciating the danger, and also, not unsurprisingly, looking at the firearms legislation of the state in which they resided, which naturally, prohibited the use or exposure of minors to guns under the age of  12 or  14, depending when you could get a minor firearms licence. So, I do admire the valiant efforts of the father’s barrister who was making submissions about the paddock to plate philosophy that the family had adopted, and the judge went along with that to some degree and said once the animals have been killed, I don’t see any reason why the six year old can’t be involved in its preparation, which I assume is skinning and it’s cooking and naturally eating.

Judgements made

But the judge found that there was not to be any exposure contrary to the firearms legislation of the child. And look, there are some funny things in judgments, even in a very grim family law matter. There are sometimes reasons, I get a kick out of things sometimes. So, the judge’s reasons include that the husband who had a history of prior criminal convictions ranging from speeding, mobile phone and seatbelt offences while driving, non-compliance with helmet use and hunting and fishing infringements. And he was found to have demonstrated a clear trend of unacceptable permissiveness or alternatively, at least thoughtlessness or carelessness as to various things, including, disregard to laws, which in my view exist for valid policy reasons to protect humans from physical and emotional harm, to protect fisheries or promote humane animal practices. So, in the end, the orders were made that no exposure to guns until permitted by the Firearms Act. And my favourite bit is that the injunctions were also issued to restrain the child from being allowed to use chainsaws, machetes, pocket or flick knives and hunting knives. So again, there’s a little undercurrent of mental illness, oddity underneath, maybe some other activities there. But you can’t be wanting to expose not only your child to hunting and fishing, but also to machetes, pocket and flick knives. So, this is not necessarily a rule of general application to many parents. But I think what I would encourage you to draw from it is that if you, and I say to my clients all the time, if we can just keep in the frame, if we can keep it tight and tidy, you are now under the scrutiny of the family court. Intact families, no matter how potentially horrific, no matter how dysfunctional, no matter how strange, will generally speaking, they can do what they like. Provided children aren’t being harmed, you can really adopt any approach in your own household. You can’t if you’re in family court and you will just draw the fire and you’ll being embroiled in litigation.


So, if you’d like to discuss that issue or any others arising in your family law matter, please don’t hesitate to contact us.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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