Baines & Tanner
[2021] FedCFamC1F 69
•23 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baines & Tanner [2021] FedCFamC1F 69
File number(s): MLC 14205 of 2019 Judgment of: MCCLELLAND DCJ Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – CHILD – BEST INTERESTS – Undefended hearing – Where paternal grandmother seeks orders to maintain the existing parenting arrangements in respect to the children – Where the father and Independent Children’s Lawyer supports the paternal grandmother’s application – Where the mother has disengaged from the proceedings – Where the eldest child currently lives with the paternal grandparents and the youngest two children currently live with the father – Where the Court finds that the mother has and continues to experience mental health and substance abuse issues – Finding that the children would be at unacceptable risk of harm in the mother’s care which cannot be mitigated by court orders – Orders made in accordance with those sought by the paternal grandmother Legislation: Family Law Act 1975 (Cth) Pt. VII, ss. 4AB, 61DA, 60CA, 60CC, 64C, 65C, 65DAA and 67Z Cases cited: A v A (1998) FLC 92-800
B and B (1993) FLC 92-357
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5
G & C [2006] FamCA 994
Johnson and Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Malcolm & Monroe (2011) FLC 93-460
McCall & Clark (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Russell & Close [1993] FamCA 62
Stott and Holgar [2017] FamCAFC 152
Valentine & Lacerra (2013) FLC 93-539
The Hon. John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
Division: Division 1 First Instance Number of paragraphs: 124 Date of hearing: 9 September 2021 Place: Melbourne by web conference Solicitor for the Applicant: Lawyers By The Bay No appearance by or on behalf of the First Respondent Solicitor for the Second Respondent: Marshalls And Dent And Wilmoth Counsel for the Independent Children's Lawyer: Mr O’Connell Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 14205 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BAINES
Applicant
AND: MS TANNER
First Respondent
MS C BAINES
Second RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.In respect to the children X (“X”) born … 2013 and Y (“'Y”) born … 2015:
(a)The Applicant Mr Baines (“the Father”) have sole parental responsibility for X and Y; and
(b)X and Y live with the Father and spend time and communicate with the First Respondent Ms Tanner (“the Mother”) as agreed between the Father and the Mother in writing.
3.In respect to the child W (“W”) born … 2011:
(a)The Second Respondent, Ms C Baines (“the Paternal Grandmother”) have sole parental responsibility for W; and
(b)W live with the Paternal Grandmother and spend time and communicate with the Mother as agreed between the Mother and the Paternal Grandmother in writing.
4.The Independent Children’s Lawyer is discharged.
AND IT IS NOTED THAT:
A.Pursuant to section 65DA(2) 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 Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baines & Tanner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McClelland DCJ:
INTRODUCTION
This matter concerns Applications for final parenting orders by the Applicant, Mr Baines (“the father”), the First Respondent, Ms Tanner (“the mother”) and the Second Respondent, Ms C Baines (“the paternal grandmother”), in respect to the children, W (“W”) born in 2011, X (“X”) born in 2013 and Y (“Y”) born in 2015 (collectively, “the children”). X and Y are the biological children of the de facto relationship of the father and the mother (“the parents”), and W is the biological child from the mother’s earlier relationship with Mr D (“W’s biological father”), who is not and did not wish to be joined as a party in these proceedings.
Since the parents’ separation, the father has re-partnered and his current partner, Ms F (“the father’s partner”) has one child, Z (“Z”) born in 2017, from a previous relationship. X and Y currently reside with the father, his partner and Z at their residence in B Town, Victoria.
W currently resides with the father’s parents, Mr E Baines (“the paternal grandfather”) and the paternal grandmother (collectively, “the paternal grandparents”), at their residence in G Town, Victoria. This arrangement arose following intervention by the Department of Health and Human Services (“the Department”) in June 2019. W has regular weekly FaceTime communication with his siblings and father, and spends occasional weekends with his sisters at the father’s household. W also spends most school holidays with his sisters.
PROCEEDING ON AN UNDEFENDED BASIS
For the following reasons, I am satisfied that it was appropriate for this matter to proceed on an undefended basis.
This matter was listed for a callover hearing before me on 24 August 2021, for the purpose of receiving an update from the parties as to what progress there had been in the matter. That hearing was conducted by way of web conference using the Microsoft Teams software application. The parties had been given written notice of that callover hearing by way of email communication sent on 29 July 2021, to respective email addresses for the parties that had been previously communicated to the court.
On 24 August 2021, it was noted that there was no appearance by the Respondent mother, when the matter was called to all parties who were waiting in the electronic waiting room of the virtual courtroom, at the time the parties were notified that the matter would proceed. A notation was further included in the orders I made, on 24 August 2021, that the parties had been advised, by way of the listing notice of the callover hearing that, in the event of non-attendance by a party, orders may be made in their absence.
In circumstances where all other parties were in a position for this matter to proceed to hearing, in the orders I made on 24 August 2021, an order was made that listed this matter “for final hearing on 9 September 2021 at 10 am and, in the absence of a party, will proceed on an undefended basis”.
In accordance with that order, this matter was listed for hearing before me on 9 September 2021 at 10.00 am. Again, at that time, there was no appearance by the mother. At the commencement of the hearing, counsel for the Independent Children’s Lawyer advised the Court that the orders made on 24 August 2021 were communicated to the mother by way of postal delivery to her last known address, and, also in addition, electronically to her last known email address. Those contact details were consistent with the advice provided to the Court in the Notice of Ceasing to Act filed on 27 April 2021 by the mother’s then solicitors.
I am satisfied that the mother has been given notice of both the callover listing on 24 August 2021 and, also, the hearing of this matter listed on 9 September 2021. Accordingly, in those circumstances and, in circumstances where there are, as I will set out below, pressing issues regarding the welfare of the children involved in these proceedings, I was satisfied that it was appropriate for the matter to proceed on an undefended basis.
Having considered the evidence presented by the parties, on 9 September 2021, I made orders as proposed by the paternal grandmother, which were supported by the father and the Independent Children’s Lawyer. I have set out below my reasons for so making those orders.
APPLICATIONS
The paternal grandmother seeks that orders be made in accordance with her Amended Response to Initiating Application filed 6 September 2021, as follows:
1. That all previous parenting orders be discharged.
2. That in relation to the children X (“X”) born … 2013 and Y (“'Y”) born … 2015:
a. The Applicant Mr Baines (“the Father”) have sole parental responsibility for X and Y.
b. X and Y live with the Father and spend time and communicate with the First Respondent Ms Tanner (“the Mother”) as agreed between the Father and the Mother in writing.
3. That in relation to the child W (“W”) born … 2011:
a. The Second Respondent, Ms C Baines (“the Paternal Grandmother”) have sole parental responsibility for W.
b. W live with the Paternal Grandmother and spend time and communicate with the Mother as agreed between the Mother and the Paternal Grandmother in writing.
AND IT IS NOTED THAT:
A. Pursuant to section 65DA(2) 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 Attachment A and these particulars are included in these orders.
Both the father and the Independent Children’s Lawyer agreed with the proposed orders sought by the paternal grandmother, set out immediately above.
EVIDENCE
The father relies upon the following documents:
(a)Initiating Application filed 12 December 2019 and sealed 17 December 2019;
(b)Notice of Child Abuse or Family Violence filed 12 December 2019 and sealed 17 December 2019; and
(c)Affidavit of the father sworn and filed 12 December 2019 (“the father’s Affidavit”).
The paternal grandmother relies upon the following documents:
(d)Amended Response to Initiating Application filed 6 September 2021;
(e)Affidavit of the paternal grandmother sworn 27 February 2020 and filed 3 March 2020, with annexures (“the paternal grandmother’s first Affidavit”); and
(f)Further Affidavit of the paternal grandmother sworn and filed 6 September 2021 (“the paternal grandmother’s second Affidavit”).
The Independent Children’s Lawyer relies upon the following documents:
(a)Section 67Z response received from the Department of Health and Human Services, Victoria (“the Department”), which has been marked ‘Exhibit 1’ in these proceedings (“the section 67Z response”).
During the course of the proceedings, I also read from an Affidavit of the mother filed 1 June 2020 (“the mother’s Affidavit”), and, in this decision, to ensure that the position of the mother is understood, I will make reference to information contained in that Affidavit.
RELEVANT BACKGROUND
In 1959, the paternal grandmother was born. She is currently aged 62 years and employed part-time as a health professional at J Hospital.
In 1991, the father was born. He is currently aged 29 years and employed as a tradesperson.
In 1991, the mother was born. She is currently aged 29 years.
In 2011, W was born and given his biological father’s surname. He is currently aged 10 years.
In late 2011, the mother and W’s biological father separated on a final basis. It was not disputed that W’s biological father has had little to no involvement in W’s life, since separating from the mother.
The father contends that, in October 2012, the parents commenced their relationship. Comparatively, the mother contends that the parties commenced their relationship in May 2012, and moved in together later that year. It has been unnecessary to resolve that factual controversy, for the purpose of the orders that I make in these proceedings.
Since October 2012, the paternal grandmother has witnessed W exhibiting emotional and behavioural issues and experiencing difficulty controlling his emotions, which has resulted in screaming fits, hitting and swearing which could last up to two (2) hours and occur multiple times per week. Her observations are consistent with the Department’s reports set out in the section 67Z response.
During the course of the parents’ relationship, and since separation, the mother has continued to abuse alcohol and illicit substances, namely methamphetamines, commonly known as “ICE”.
In 2013, X was born. She is currently aged seven (7) years.
In or about 2014, W’s biological father Mr D submitted relevant documentation to the New South Wales Department of Birth, Death and Marriages for the purpose of changing W’s surname to Baines.
On 14 December 2014, the Department first became involved with the children, in respect to concerns that the mother was neglecting the children.
In 2015, Y was born. She is currently aged five (5) years.
In 2017, Z was born. He is currently aged four (4) years.
It is not disputed that the mother has attempted suicide on three (3) occasions. On one occasion, the children were in the mother’s care. While reflective of personal struggle, this clearly presents a major concern for the physical and emotional safety of the children if they were to be placed in her care, or spend time with her, if it were to be the case that the mother again attempted to self-harm.
Since December 2014, the Department have made a number of Applications, in respect to the children, as a result of protective concerns they had regarding the mother’s abuse of methamphetamines and alcohol, as well as concerns regarding the mother’s mental health. Those interventions are detailed in the section 67Z response. I do not see any utility in detailing those interventions, in circumstances where this decision will already be extremely difficult for the mother to read.
The father contends that, in October 2018, the parents separated on a final basis. Comparatively, the mother contends that they initially separated in January 2017, and lived under the same roof until April 2018. It has also been unnecessary to resolve this factual controversy for the purpose of the orders that I make in these proceedings.
On 17 November 2018, the mother posted to her social media about her addiction to methamphetamines which resulted in a notification to the Department in respect to concerns about the children’s safety. The Department notified the father of the social media post and, as a result, the father assumed full time care of the children and did not return them to the mother’s care.
On 20 February 2019, the mother was voluntarily admitted into a rehabilitation program at H Clinic, City K, to address her drug addiction and mental health issues.
On 3 April 2019, case plans prepared by the Department provided that the mother spend time with the children, supervised by the maternal grandmother, every Sunday from 10.00 am to 4.00 pm.
In May 2019, the mother moved into the home of the maternal grandmother.
In or about May 2019, the Department were notified of a family violence report between the mother and her then boyfriend, Mr L.
In or around late May or early June 2019, during a contact visit with the children supervised by the maternal grandmother, the mother informed the father that she would not return W to his care. As a result, both he and the paternal grandmother notified the Department who informed them that they would devise a care plan to remove W from the mother’s care. The paternal grandmother notified the Department of the willingness of the paternal grandparents to care for W. That offer was made in circumstances where, due to the demands of caring for all of the children, the father and his partner were not able to devote the time necessary to address the complex and difficult behavioural issues being exhibited by W. Understandably, the father was concerned that this had the potential to impact upon the welfare of not only W, but also his two daughters.
From this time until 25 June 2019, the mother kept W in her care, and withheld W from the father and the paternal grandmother.
On 25 June 2019 the Department advised the father that, on 21 June 2019, the mother had attempted suicide, by overdosing on prescription medication while the children were in her care, and, as a result, the mother was admitted to the Psychiatric Ward of M Hospital.
On 25 June 2019, the Department removed W from the mother’s care. On that date, the paternal grandmother agreed to the Department’s request that she assume care for W and was appointed W’s guardian. This was with the father’s consent.
On 11 November 2019, the mother acknowledges that she was sentenced for criminal damage to property, and placed on a 15 month, treatment only corrections order. The mother attests, at paragraph 44 of her Affidavit, that “[t]his became a real turning point in my recovery as I was pushing for the corrections order, [and] excited to have the structure”. Unfortunately, as I will set out below, however, the evidence satisfies me that the mother continues to have problems with unaddressed mental health challenges, and abuse of illicit substances, which is confirmed in the section 67Z response, and also by the fact that the mother returned a positive result to methamphetamines in a drug screen test performed in August 2020.
Since 25 June 2019, W has lived with the paternal grandparents, on their farm in G Town, Victoria. The paternal grandmother attests that W has settled in well, enjoys activities on the farm, attends a local school and is engaged in a number of sporting and extracurricular activities.
There was no challenge to the evidence that, since being placed in the care of the paternal grandparents, W’s behaviour and emotional issues have significantly improved. The paternal grandmother acknowledges that he still struggles to control his emotions and still has emotional outbursts, however, she attests that these outbursts occur far less frequently and resolve within minutes. She further acknowledges that W’s behaviour at school continues to present an issue, however, contends he is learning to manage these issues better. The paternal grandmother’s Affidavit is expressed in clear and direct language, and without any unnecessary embellishment. Her evidence is consistent with the section 67Z response, and I accept this aspect of her evidence, and her evidence generally, to be truthful and accurate.
In January 2020, the Intervention Order, restraining Z’s biological father from spending time with Z, expired. It does not appear, however, that Z’s biological father has had any significant involvement in Z’s life since that time.
On 16 January 2020, W first attended upon his psychologist, Ms N, in accordance with his mental health plan. He is continuing to receive therapy as required.
On 12 December 2019, the father commenced these proceedings by filing an Initiating Application for final parenting orders, seeking orders for sole parental responsibility in respect to the children. The father also filed a Notice of Child Abuse or Family Violence (“the Notice of Risk”) on that date, alleging the matters which have been set out above.
The Department provided the section 67Z response, dated 7 February 2020, to the mandatory notification of the father’s Notice of Risk, pursuant to s 67Z(3) of the Family Law Act 1975 (Cth) (“the Act”), which summarises the history of the Department’s involvement with the children, details in respect to any current investigations by the Department and recommendations from the Department in respect to these proceedings. As earlier noted, this is a significant document, and is marked ‘Exhibit 1’ in these proceedings.
On 7 February 2020, Registrar Matthews made orders, which included orders for the appointment of an Independent Children’s Lawyer. The Registrar also made interim orders with the consent of the parents, set out as follows:
IT IS ORDERED BY CONSENT THAT
1)[The paternal grandmother] be joined as the Second Respondent to these proceedings.
2)The Mother and [the paternal grandmother] file and serve their Court material including a Response and any Affidavit within 21 days.
3)The children X and Y live with the Father.
4)The parties forthwith do all acts and things necessary to enrol in the following children’s contact services (“CCS”):
a)P Contact Service in Suburb U; and
b)Q Contact Service in Suburb V.
5)The children spend supervised time with the Mother at a CCS as may be facilitated by the service.
6)The Mother undertake random supervised urine drug screens as requested by the Father’s solicitor (or Independent Children’s Lawyer) and provide the results to the Father’s solicitor with such request to be not more frequently than twice per month.
7)Prior to any supervised time commencing in accordance with paragraph 5 the Mother undertake no less than five random supervised urine drug screens.
8)Until further order, the children communicate with the Mother by telephone by agreement and failing agreement on Tuesday, Thursday and Saturday between 6.00 pm and 6.30 pm.
AND IT IS NOTED THAT
A.[The paternal grandmother] consented in Court to being joined as a party to these proceedings and has been served with all filed Court documents.
Between 7 February 2020 and 31 May 2021, the Independent Children’s Lawyer made written requests to the mother for supervised drug screen results on at least seven (7) occasions. I accept the evidence of the paternal grandmother, that the mother has only provided results from an accredited collection facility on a single occasion and unsolicited results from a non-accredited collection agency on two (2) separate occasions.
On 3 March 2020, the paternal grandmother filed a Response to Initiating Application for parenting orders in respect to the children.
On 1 June 2020, the mother filed a Response to Initiating Application for parenting orders in respect to the children, seeking leave to particularise her proposed final orders after receipt of all relevant reports. This Application also sought interim parenting orders for the children to spend time with the mother for six (6) hours each Saturday or Sunday or other times as agreed, to be supervised by the maternal grandmother or either of the mother’s nominated friends, Ms O and Ms R. The mother’s application was supported by her Affidavit filed 1 June 2020, to which I have earlier referred.
I accept the evidence of the paternal grandmother that, by drug screen results dated 4 August 2020, the mother tested positive for codeine, morphine, narcodeine and amphetamine.
On 18 August 2020, Registrar Mestrovic made further interim orders with the consent of the parties, relevantly set out as follows:
UNTIL FURTHER ORDER:
1.Paragraphs 4, 5 and 7 of the orders made on 7 February 2020 be discharged.
2.The mother spend time with the children, W born … 2011, X born … 2013 and Y born … 2015 as follows:
a.For the first month and each alternate month thereafter, at the fathers home or in the vicinity/location at times to be agreed but for a period of not less than four consecutive hours and ;
b.For the second month and each alternate month thereafter at the maternal grandmothers home or in the vicinity/location at times to be agreed but for a period of not less than four consecutive hours
c.As otherwise agreed between the parties from time to time.
3.Time is to occur at the home of the father or in the vicinity of the home on the first month, and the home of the maternal grandmother or in the vicinity of the home on the second month and to thereafter alternate each month unless otherwise agreed.
4.All time is to be supervised by the paternal grandmother[.]
5.The parties forthwith do all things necessary and sign all necessary documentation required to place the child, W, on to the Medicare card of the paternal grandmother[.]
…
IT IS NOTED THAT
…
BW’s biological father, Mr D, has been served with the sealed court documents and has chosen not to participate in these proceedings.
CThe parties agree for the purposes of time the paternal grandmother will supervise all time, but other family members may be present during time, particularly if the time occurs at the homes of the father or paternal grandmother.
DThe parties agree that they will attend mediation at FDRS in the endeavour to settle matters.
On 30 September 2020, Registrar Mestrovic again made further interim parenting orders with the consent of the parties, relevantly set out as follows:
IT IS ORDERED BY CONSENT:
1.That all previous parenting orders be discharged.
2.That in relation to the children X (“X”) born … 2013 and Y (“Y) born … 2015:
a.X and Y live with the Father and spend time and communicate with the Mother as follows:
i.Each alternate Sunday from 10:00am to 4:00pm;
ii.By telephone each Tuesday, Thursday and Saturday between 6:00pm to 6:30pm with the Father to initiate the call; and
iii.At such further and other times as agreed between the parties in writing.
3.That in relation to the child W (“W”) born … 2011:
a.W live with the MS C BAINES (“the Paternal Grandmother”) and spend time with the Mother as follows:
i.Twice a month on days and times to be agreed between the Mother and Paternal Grandmother, with the Mother to travel to the Paternal Grandmother’s residence for one visitation and the Paternal Grandmother to travel to the Mother’s residence for the other visitation; and
ii.At such further and other times as agreed between the parties in writing.
b.The Paternal Grandmother shall be at liberty and is otherwise authorised to:
i.Obtain from W’s childcare/school, at her own expense, all notices, reports and school photographs;
ii.Liaise with the administration and teachers of the school concerning W’s educational development and obtain any reports and information and authorise W’s participation in any school related activity; and
iii.Liaise with any medical practitioner or allied health professional who is attending upon W and to obtain any reports and information concerning W from such professionals.
4.That the Mother’s time pursuant to Orders 2(a)(i) and 3(a)(i) be supervised by either the Maternal Grandmother MS S TANNER, the Paternal Grandmother or any other appropriate supervisor as agreed between the parties.
5.That in the event the Mother is unable to spend time or communicate with the children as arranged, the Mother and/or her agent shall as soon as practicable notify the Father or Paternal Grandmother of same.
…
7.Each of the parties shall, as soon as practicable, advise and keep the other party informed of the following:
a.any serious illness or medical emergency involving the children whilst in their care, including all details regarding the injury, illness, hospital location, medical practitioners and treatment required; and
b.any specialist medical practitioners or allied health professionals for which the children is attending upon.
8. The Mother shall be at liberty and is otherwise authorised to:
a.obtain from the children’s childcare/school, at her own expense, all notices, reports and school photographs;
b.liaise with the administration and teachers of the childcare/school concerning the educational development of the children, and
c.liaise with any medical practitioner or allied health professional who is attending upon the children and to obtain any reports and information concerning the children from such professionals.
…
NOTATION
AThat the Father, as soon as practicable, do all things and acts necessary to ensure the child X is engaged with a counselling service and upon doing so notify the Mother’s solicitor and the Independent Children’s Lawyer.
In April 2021, during the Easter holidays, the mother and maternal grandmother attended the paternal grandparents’ home to celebrate W’s birthday with the children. The mother also spent some time with W at a visit with the paternal grandmother to the Zoo in November 2021.
Since W has been in her care, the paternal grandmother has facilitated the mother spending time with W when she has requested to do so. The paternal grandmother has also facilitated W talking with his mother on the telephone, however, attests that there have been some difficulties in respect to that phone contact, and that, as a result, the mother now rarely has telephone communication with W. The paternal grandmother, through her solicitor advocate, unreservedly stated that her desire is for W to have a relationship with his mother and, unless she assesses that the mother is not in a fit and proper condition to communicate with and/or to visit the child, she will facilitate any reasonable request made by the mother. The paternal grandmother’s commitment to the Court to that effect is entirely consistent with the manner in which she has behaved to date, and I accept the genuineness of the paternal grandmother’s intention in that respect.
On 27 April 2021, the mother’s then solicitors filed a Notice of Ceasing to Act.
On 24 August 2021, this matter was listed for a callover hearing before me, however, no appearance was made by or on behalf of the mother. As a result, I made orders listing this matter for hearing before me which, in the event of the absence of a party, would proceed on an undefended basis.
THE LAW – CONCEPTS AND PRINCIPLES
The standing of the paternal grandmother
Section 64C of the Act provides that the Court may make a parenting order in favour of a parent of a child “or some other person”. Section 65C sets out those persons who may apply for a parenting order under Part VII of the Act. This includes, at s 65C(c), “any other person concerned with the care, welfare or development of the child”. I accept that the paternal grandmother is such a person.
In this way, paternal grandmother’s Application is to be considered no differently than it would be if she were a biological parent of W. In Valentine & Lacerra (2013) FLC 93-539 at [43], the Full Court said:
The plain fact of the matter is that there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act).
Moreover, it is clear that the considerations set out in s 60CC of the Act can be applied in consideration of the position of a non-parent, in the same way that they can to the position of a parent. Lest there be any doubt about that, it is noted that s 60CC(3)(m) provides that, in determining what is in the child’s best interests, the Court must consider “any other fact or circumstance that the court thinks is relevant”.
In that respect, in Mulvany & Lane (2009) FLC 93-404 at [76]–[77], May and Thackray JJ said:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child's best interests.
(Emphasis in original)
There is nothing in the Act preventing the Court from giving consideration to those other matters set out in s 60CC(2) and (3), when considering the relationship between a child and a person who is not the child’s biological parent. Indeed, there are common sense reasons for doing so. Such an approach was described by the Full Court in Malcolm & Monroe (2011) FLC 93-460 at [97]–[98] in the following terms:
In summary, to the extent that it is asserted that some of the considerations listed in s 60CC of the Act precludes consideration of those factors in relation to persons other than a parent, for the reasons outlined above by the respective Full Courts in Mulvaney & Lane and Aldridge & Keaton, this assertion or submission is rejected. Even if the literal interpretation of the s 60CC factors which specifically refer to “parents” … must only relate to parents (in the strict sense) a submission that we do not accept, s 60CC(3)(m) would permit and, indeed, almost require a consideration of the matters set out above in relation to persons who are other than parents.
The paramount consideration before the Federal Magistrate was determining what orders could be made in the best interests of L. This in turn meant that he was to give consideration to the relevant s 60CC factors in relation to all of the relevant people in her life. We are satisfied that he did so.
Adopting that approach, I will apply the same considerations in determining what is in the best interests of the children. For convenience, in applying the legislative guide set out in s 60CC of the Act, I will regard the legislative reference to “parent” as being equally applicable to the paternal grandmother, in respect to her relationship with W.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Family violence is defined in s 4AB(1) of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; …
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Section 4AB(3) provides that “a child is exposed to family violence if the child see or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
In this matter, for reasons which I will set out in greater detail, I am satisfied that the children have been exposed to family violence, as defined by s 4AB of the Act, in the mother’s care, and, consequently, the presumption of equal shared parental responsibility should not apply in this case. Accordingly, the presumption of equal shared parental responsibility should not apply in this case set out in s 65DAA of the Act does not apply, and the Court’s task is to make such parenting orders as are in children’s best interests of the children.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in s 65DAA of the Act.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at [122], the Full Court said:
… No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall & Clark at [117], the Full Court, referring to the comments made by Bennett J in G & C [2006] FamCA 994, where her Honour was said that “the enquiry was a ‘prospective’ one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at [123], the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In Loddington & Derringford (No 2) [2008] FamCA 925 at [169], Cronin J held that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(Emphasis added)
Issue of risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The relevant question is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with any of the parties.
In Stott and Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson and Page (2007) FLC 93-344 at 81,890–81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
Additional considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
(c)Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
(d)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(e)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(g)Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
CONSIDERATION
The most relevant considerations in this matter are the primary considerations set out in s 60CC(2) of the Act. That is, balancing the general presumption that it is in the best interests of a child to have a meaningful relationship with both parents against any factors or circumstances which would be contrary to the children’s best interests for that relationship to occur. Most relevantly, in that context, is the issue of risk to the child and, specifically, whether the children would be exposed to an unacceptable risk of physical and/or psychological harm, in the event that orders are made for the child to spend time or communicate with the mother.
While relevant to my consideration of this matter, the other matters set out in s 60CC(3) are very much secondary to the main issue of unacceptable risk which has been raised in these proceedings. Accordingly, I will set out those matters relevant to the primary considerations set out in s 60CC(2), that is, first, the ‘issue of risk’ and ‘meaningful relationship’, before discussing those matters relevant to the s 60CC(3) additional considerations.
For reasons which I set out in greater detail below, I am satisfied that, as a result of the matters referred to in the section 67Z response, the children in this matter would be presented with both an unacceptable risk of physical and also psychological harm in spending time with the mother, in circumstances where the mother has not taken steps to effectively address her mental health and substance abuse issues. Further, I am satisfied that, unless and until the mother take steps to effectively address her mental health and substance abuse issues, it is not in the best interests of the children for them to have a meaningful relationship with their mother.
Protection from risk of harm
In circumstances where this matter has been presented on the basis of it being undefended, I have endeavoured to ensure that the position of the mother, as previously communicated to the Court, is acknowledged. In that context, as is clear from her Affidavit, there is no question that the mother in these proceedings has experienced enormous personal challenges.
The mother’s father died when she was aged 12 years. She became pregnant with W in her last year of high school and her relationship with W’s biological father broke down, as a result of her then partner’s drug addiction and perpetration of family violence upon the mother. As a result, the mother returned to live with the maternal grandmother in January 2012.
Some stability returned to the mother’s life, after meeting the father in these proceedings, in May 2012 and, later in that year, commencing cohabitation in rental accommodation. Unlike references she has made to her prior, and subsequent relationships, the mother does not allege that she was subjected to any inappropriate conduct on the part of the father. Both the mother and the paternal grandmother, however, attest to the parents experiencing significant challenges in dealing with W’s behaviour, both at home and at school. Those challenges are outlined in the section 67Z response, to which I have referred.
The mother’s Affidavit filed 1 June 2020 candidly outlines the significant mental health and substance abuse issues that she has confronted. By way of summary, they include the following events outlined below. It is important to note, in discussing the issues which the mother has confronted, that this Court does not discharge its statutory responsibilities in a manner that is morally judgmental. The focus of the Court is upon making such orders as are in the best interests of the children.
The mother acknowledges that, in August 2016, her mental health deteriorated after her best friend committed suicide. Soon after that, the mother was arrested for driving while intoxicated with alcohol, and was ordered by a court to undertake a 10 day alcohol detoxification program.
The mother continued to experience mental health challenges and, from 7 December until 23 December 2016, she was admitted as a patient of a psychiatric hospital, the H Clinic (“H Clinic”) as an inpatient. At that time, she was diagnosed with Borderline Personality Disorder (“BPD”), Dysthymia (depression), Anxiety and Complex Post Traumatic Stress Disorder (“PTSD”). As noted, it has not been contended that the mother’s trauma has been associated with any conduct on the part of the father.
The mother acknowledged that, in 2017, she attempted suicide on two occasions. From March 2017 to January 2018, the mother attests to participating in Dialectical Behavioural Therapy for the purpose of managing the symptoms that arose from BPD.
From 25 July to 28 August 2017, the mother again voluntarily admitted herself to H Clinic, and, at that time, she was advised that her depression “was treatment resistant”. The mother also voluntarily admitted her to H Clinic in the period from 27 October until 24 November 2017, during which time she received 11 sessions of electroconvulsive therapy to address her symptoms of depression.
The mother felt that her mental health was improving until early 2018, when her younger brother and only sibling died in a car accident. The mother also attested that, in April 2018, the father moved out of the former family home and the parents commenced a shared care arrangement in respect to the children, wherein the father had care of the children every alternate weekend.
The mother stated that, at this point, she was “struggling to keep up with everyday life” and she entered into a relationship with Mr T, the father of her best friend who committed suicide in August 2016, referred to by the mother as simply “Mr T”, who was himself suffering from substance abuse issues, including, as contended by the mother, an “addiction to methamphetamines”. The mother acknowledges that, influenced by Mr T, she herself commenced to use methamphetamines in June 2018.
The mother returned to the former family home after another voluntary admission from 28 June to 14 July 2018, during which she received further electroconvulsive therapy. From her return, she continued to reside with Mr T until a domestic violence incident in October 2018, when Mr T was violent towards the mother at a time that the children were in her care. The mother’s description of that incident and the subsequent events following that incident, at paragraphs 36 through to 44 of her Affidavit, stated as follows:
36. In October 2018, there was a domestic violence incident between Mr T and myself, while the children were in my care. I called the police and an Interim Intervention Order [(“IVO”)] was put in place on the day and Mr T was removed from the house. The following day, Mr T returned to the house so I called the police and he was arrested. I did not press charges, however, he had a warrant out for his arrest for failure to appear at court and for prior charges.
37.I was struggling again, but I now knew of a way to make myself feel better quickly and there began my dependency on ice. In December 2018, I realised that I had a problem when I found myself unable to stop so I decided to go public about it to ensure I was held accountable, hoping this would aid my recovery. As a result of this, Mr Baines obtained full care of the children.
38.I was unable to detox at home so I had a further admission at H Clinic from 11 February to 28 February 2019.
39. In 2019, I attempted suicide on again, however, I do not recall the specific events surrounding the attempt.
40. In March 2019, … Mr T was released from prison. Mr T began harassing me as soon as he was released.
41. In April 2019, I receive[d] a notice to vacate the house due to noise complaints. The day I was required to hand back the keys was the day of my wedding anniversary. In addition to this, I moved back with my mother and being in my childhood home brought up a lot of mixed emotions. Mr Baines and his partner Ms F were very hostile towards me at this time and all of these stressors combined resulted in a relapse in my ice use and mental stability.
42. On 13 June 2019, I had a mental breakdown and entered our old property to sit and think. I then smashed the windows of the house. Within the week, my guilt overpowered me and I contacted the police to admit to the crime that I had committed. I am very remorseful for my actions.
43.Mr T’s harassment got progressively worse until he was arrested on 18 August 2019. As a result of the domestic violence perpetrated against me, Mr T was charged with two counts of persistent breach of the IVO, contravening IVO, unlawful assault, unlawful assault with a weapon, recklessly causing injury and criminal damage. He received a 10-month imprisonment sentence.
44. On … 2019, I was sentenced for the criminal damage to the house and placed on a 15-month treatment only corrections order. This became a real turning point in my recovery as I was pushing for the corrections order, excited to have the structure.
Regrettably, however, despite her previously stated optimism, the evidence satisfies me that the mother has continued to experience significant mental health and substance abuse challenges. She has shown little insight in respect to the impact that these challenges have had on the children, and she has continued to make poor relationship choices. In that respect, at pages 7 and 8, the section 67Z response relevantly states:
Ms S Tanner [the maternal grandmother] contacted After hours Child Protection Emergency Services on 22/06/2019 advising that Ms Tanner had an overdose the night prior and was admitted to the intensive care unit. Ms S Tanner advised that W was not present for the overdose however had returned home whilst the ambulance were present and was seeking advise in relation to care arrangements for W. Contact was made with Mr Baines however he was not willing to care for W and felt like he was being used.
An outreach visit was completed on 24/06/2019 where W was interviewed at school and then a home visit was completed to Ms Tanner. W eventually confirmed the incident involving the ambulance over the weekend however appeared to be extremely protective of his mother. W was fidgety and did not wish to speak to Child Protection for long, eager to go outside. Discussions were held with Ms Tanner about the incident and W being exposed to Ms Tanner’s untreated mental health. Ms Tanner was advised of the significant concerns for W being in her care and discussed seeking for him to reside elsewhere. Ms Tanner advised that she had been in contact with W’s paternal aunt and uncle and was wanting him to reside there. Ms Tanner agreed to the following safety plan whilst Child Protection completed follow up/ assessments on placement options for W;
- To not be unsupervised with W
- To explore an alternative care arrangement for W
- To contact mental health professionals if she is feeling suicidal
W was voluntarily placed in the care of his step paternal grandparents, Ms C Baines and Mr E Baines, on 25/06/2019 and has remained in their care since. The step paternal grandparents have enrolled W into G Town Primary School and have offered him safety, stability, structure and routine. The primary school have discussed observing challenging behaviours for W however significant improvements have been noted. Child Protection have visited W since being in the paternal grandparents’ care where he has discussed his chores and jobs he has there, including looking after the animals on the property.
Whilst preliminary assessments were successfully completed on the paternal aunt and uncle as possible placement options for W, it was determined that placement with the step paternal grandparents was in the best interests for W. W has been able to maintain a relationship with his siblings and step father who often visit and has developed strong relationships with cousins who reside close by .
Child Protection closed their involvement with X and Y due to them remaining in the care of Mr Baines however have remained involved with W. Child Protection will be closing their involvement following completion of this report due to W being in a safe and supported environment.
Throughout Child Protection’s involvement Ms Tanner’s engagement has been limited and she has not completed any of the supervised urine drug screens requested, Ms Tanner lacks insight into the protective concerns and has been unable to demonstrate sustained change nor has she been able to address the protective concerns. Ms Tanner has been made aware that should she attempt to remove W from his current placement that legal intervention would be strongly considered.
Ms Tanner has been in an on again off again relationship with Mr L. Mr L is well known to Child Protection and there are concerns surrounding his substance use and mental health.
As a result of those observations, at page 8 of the section 67Z response, the Department recorded its recommendations, as follows:
•It is recommended that X and Y remain in the care of their father and for any contact with their mother to be fully supervised.
•It is recommended that W remain in the care of his step paternal grandparents where he is provided with a safe and stable environment, free of drug use, alcohol abuse, untreated mental health and family violence. Any contact between W and his mother should be fully supervised.
Regrettably, despite the optimism expressed by the mother at paragraph 44 of her Affidavit filed 1 June 2020, the evidence satisfies me that the mother continues to experience significant mental health and substance abuse challenges. This is confirmed by her failure to attend for drug screen testing in accordance with orders of the Court, despite indicating in paragraph 54 of her Affidavit, that she was in a position to undertake supervised urine drug screens. Most significantly, and relevantly, the mother’s ongoing substance abuse challenge is confirmed in the positive drug screen test result dated 4 August 2020, being a date subsequent to the mother’s Affidavit filed 1 June 2020. Further, an inference that I draw from the fact that the mother has disengaged from these proceedings is that, unfortunately, she continues to have ongoing mental health challenges.
The impact that the mother’s mental health and substance abuse challenges has had on the children has been set out in extensive detail in the section 67Z response from the Department.
Having found that the mother continues to be confronted by such challenges, I am satisfied that, if placed in the care of the mother, the children would be at risk of physical harm, as a result of the mother engaging in angry, aggressive and dysregulated behaviour at times that she might experience an acute mental health episode, and/or if she is affected by illicit substances. In addition, I am satisfied that the children would also be at risk of psychological and emotional harm in those circumstances. I am further satisfied that the mother’s capacity to properly care for the children, including by attending to their physical or emotional and intellectual needs, is seriously compromised by her mental health and substance abuse challenges.
As previously noted, authorities of this Court require me to give consideration to the prospect of mitigation of those unacceptable risks. While professional supervision would provide some protection for the children in respect to those physical risks to which I have referred, I am not satisfied that such supervision would protect the children from the emotional risks that they would be exposed to in the mother’s care. That is because, even in circumstances where the children’s time with their mother is professionally supervised, in the absence of the mother taking effective steps to address her mental health and substance abuse issues, there is an unacceptable risk of the children being exposed to the mother’s angry, aggressive and dysregulated behaviour directed at others, and potentially towards the children themselves.
In those circumstances, I respectfully agree that the recommendations of the Department, to which I have earlier referred, are both appropriate and in the best interests of the children. The orders proposed by the paternal grandmother, which are supported by the father and the Independent Children’s Lawyer, are consistent with those recommendations.
As I indicated to the parties, during the course of these proceedings, I am satisfied that the issue of risk to the children, in spending time with their mother, is so profound that it overwhelms all other considerations. For completeness, however, I will detail below my findings in respect to the other s 60CC(2) primary consideration of ‘meaningful relationship’ and the additional s 60CC(3) considerations.
Meaningful relationship
For reasons which I have set out above, in circumstances where the mother has failed to take steps to effectively address her mental health and substance abuse issues, I am not satisfied that it is in the best interests of the children to have a meaningful relationship with their mother at this point in time.
As noted, both the father and the paternal grandmother acknowledge that it is appropriate to review that situation if the mother is able to undertake a program of effective treatment to address her mental health and substance abuse issues, and engage in an ongoing program of monitoring her recovery. As previously indicated, I am satisfied of the genuineness of both the paternal grandmother and the father in declaring that intention.
Accordingly, the Court does not make orders for the children to spend time with or communicate with the mother.
I will rather, however, leave determination of the circumstances, in which any such time and/or communication with the mother occurs, to the judgment of the paternal grandmother and the father. This is in circumstances where, as I have earlier noted, I am satisfied that both the paternal grandmother and the father hold a genuine intention, as expressed, that they both have a sincere desire for the children to have a meaningful relationship with their mother, if that is reasonably possible in a manner that would not expose the children to an unacceptable risk of psychological and/or physical harm as a result.
Additional considerations
Issues relating to the children – their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h)
The children are young and, as such, their views are a secondary consideration to the issue of risk, to which I have set out above. I am satisfied that all of the children are safe, comfortable and secure in their respective current parenting arrangements. I accept the evidence of the paternal grandmother that W has adjusted to living with her and the paternal grandfather, and that it is W’s expectation that this will continue into the future.
A relevant consideration in this matter is the developmental and behavioural challenges experienced by W, in circumstances where, unfortunately, he has experienced intergenerational consequences of the mother’s challenges. In that respect, a poignant aspect of the paternal grandmother’s evidence is set out in paragraph 13 of her second Affidavit, which states as follows:
More recently, W has been recalling incidents that occurred when he was living with hi[s] Mother. On occasion, he told me “The police came to the house and handcuffed mummy so tight she couldn’t move her hands.” He then told me he would hide the girls (his two sisters X and Y) when this and other things happened so they couldn’t witness it. He was not distressed in describing these incidents, just very matter of fact.
There is no doubt that this young man has, at his age, witnessed more than people should experience in an entire lifetime. This experience has clearly had an impact upon him. He has had challenges and he continues to have significant challenges but the evidence satisfies me that his paternal grandparents are doing all that they reasonably can to assist W in respect to his schooling, his extracurricular activities, his engagement with animals on their farm and his interaction with other children, including his cousins who I am satisfied he has a close relationship with.
In a perfect world, it would be ideal, of course, if W could live with his sisters, who he has bravely attempted to protect in circumstances which they have also confronted. However, understandably, in the context of the significant challenges faced by W, the father has formed the view that he is not in a position to provide the level of care and support for W that is necessary, in circumstances where he also has responsibility for the care of the two younger children. Fortunately, that love, care and support for W is being provided by the paternal grandparents.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i)
For reasons which I have set out above, the mother has been unable to provide the physical and emotional care required of the children.
As I have earlier noted, the evidence satisfies me that the paternal grandparents are providing appropriate care for W. This is confirmed in the observations of the Department, as set out in the section 67Z response, to which I have earlier referred.
The father’s Affidavit details the care that is being provided for his two daughters, X and Y, and the father is supported in that respect by his current partner. The evidence satisfies me that the girls are also living in a household which offers them safety, stability, structure and routine, as well as love, affection and support.
Issues of family violence: ss 60CC(3)(j) and (k)
The children, regrettably, have been exposed to significant family violence in their mother’s household. The prospect of the children being returned to that situation cannot be countenanced.
Effect of change: s 60CC(3)(d)
The current parenting arrangements for the children have been in place since 25 June 2019, and the orders sought by the paternal grandmother will retain that stability for the children.
Practical difficulty of implementation: s 60CC(3)(e)
There are no practical difficulties in retaining the current parenting arrangements.
Avoiding further proceedings: s 60CC(3)(l)
In this matter, I will make final orders as sought by the paternal grandmother that provide for parenting arrangements of the children which are consistent with the recommendations of the Department, and which have been in place since June 2019. There is no reason to anticipate that there will be further proceedings.
Other relevant matters: s 60CC(3)(m)
As I have previously set out, the legal representatives for both the paternal grandmother and the father specifically requested that the Court note that each of the parties empathises with the mother’s current situation, and it is their sincere desire for the mother to be able to address her mental health and substance abuse issues. They both advised the Court, through their legal representatives, that if the mother is able to start on the road to recovery, they will both make every reasonable endeavour that they possibly can to ensure that the children retain a relationship with their mother. As previously noted, the Court acknowledges and respects the genuineness of the commitment they have both made.
Parental responsibility
The evidence, to which I have earlier referred, satisfies me that the mother’s parenting capacity has been so impacted by mental health and substance abuse issues, that an order providing for the mother to be allocated any aspect of parental responsibility, in respect to the children, is untenable in the current circumstances.
In light of the current mental health and substance abuse challenges faced by the mother, I am not satisfied that it is appropriate for the mother to be involved in making decisions concerning major long-term issues, in respect to the care and welfare of the children. I will, therefore, make orders for the paternal grandmother to have sole parental responsibility in respect to W, who is living with her, and, similarly, I will make orders for the father to have sole parental responsibility for his two daughters who remain in his care.
CONCLUSION
In conclusion, while the children who are the subject of these proceedings have faced significant challenges in their young lives, there is cause for optimism for their future, as a result of the decency and dedication shown by the paternal grandparents and the father in these proceedings.
For all of these reasons, I will make the orders as proposed by the paternal grandmother, which are supported by the father and the Independent Children’s Lawyer, as set out at the commencement of these reasons for judgement.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Dated: 23 September 2021
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