Balke and Balke and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALKE & BALKE & ANOR

[2018] FCCA 3079

Catchwords:
FAMILY LAW – Parenting – Child aged 3 living with her maternal grandmother – whether the child should remain living with the maternal grandmother or transition to the primary care of the father.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant:

MS BALKE

First Respondent:

MS A BALKE

Second Respondent:

MR SCHIAK

File Number:

NCC 3279 of 2016

Judgment of:

Judge Terry

Hearing dates:

27, 28 and 29 August 2018

Date of Last Submission:

29 August 2018

Delivered at:

Newcastle

Delivered on:

20 September 2018

REPRESENTATION

Counsel for the Applicant:

Ms Carty

Solicitors for the Applicant:

Virginia Taylor Lawyer

Counsel for the First Respondent:

Mr Mooney

Solicitors for the First Respondent:

Krstina Wooi Lawyer

Counsel for the Second Respondent:

Mr Guyder

Solicitors for the Second Respondent:

Gillard Family Lawyer

Counsel for the Independent Children’s Lawyer:

Solicitors for the Independent Children’s Lawyer:

Mr Davies

Adams & Associates

ORDERS

All previous order are discharged.
The father shall have sole parental responsibility for the child [X] born 2015 (“the child”).
The father shall spend time with the child as follows:
(a)From after day care on Monday to 5.00pm on Wednesday each week for a period of three months commencing on 24 September 2018.
(b)Then from after day care on Monday to 5.00pm on Thursday each week for a further three months.
(c)Then from after day care on Monday to 5.00pm on Friday each week for a further three months.
At the conclusion of the time in 3(a) to (c) above the child shall live with the father.
At all times that the child is not living with the father as outlined in 3(a) to (c) above the child shall live with the maternal grandmother.
When the child is living with the father pursuant to order 4 above the child shall spend time with the maternal grandmother:
(a)Each alternate weekend from 3.30pm on Friday to 5.00pm on Sunday.
(b)At such additional or alternate times as may be agreed between the father and the maternal grandmother.
Changeover shall take place by child being delivered to or collected from school or day care by the parties or their nominees unless the school or day care is not open on the relevant day or the child is not attending school or day care on that day in which case the parties or their nominees will meet at Hungry Jacks at Town A at commencement and conclusion of the time.
The child shall spend time with the mother as agreed between the mother and the father and failing agreement for not less than five hours each alternate Sunday when the child is spending time with the maternal grandmother with the time to be supervised by the maternal grandmother.
The father shall undertake a hair follicle test every three months from the date of these orders until he has undertaken a total of 8 tests and shall provide a copy of the results of such tests to the maternal grandmother and mother within 7 days of receiving the results.
The parties are restrained and an injunction is granted restraining them from denigrating the other parties or any member of that party’s family to or in the presence or hearing of the child or from permitting the child to remain in the presence or hearing of any other person doing so.
Each party shall inform the other as soon as reasonably practicable in the event of the child while in their care being involved in an accident or medical emergency requiring attendance at hospital or being diagnosed with a serious illness.
Each party shall inform the other, as soon as practicable, of any change to that party’s residential address and/or fixed or mobile telephone number.
Each party may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and the father and maternal grandmother may attend events at the child’s school normally attended by parents.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3279 of 2016

MS BALKE

Applicant

And

MS A BALKE

First Respondent

And

MR SCHIAK

Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a difficult case. As the family report writer said it turns on an assessment of risk and on which option for [X], aged three, is most likely to result in her receiving good enough parenting and least likely to result in her suffering harm, including the psychological harm involved in constant changes of primary residence.
[X] was conceived as a result of a brief sexual relationship between the mother Ms A Balke, and the father Mr Schiak. Both parents were using drugs (including ice) and the father was in the midst of a career of criminality which subsequently saw him serve two short periods of imprisonment.
The mother was 18 when [X] was born. She cared for the child for the first 15 months of the child’s life although for a lot of that time she lived in the maternal grandmother’s home.
The father was always interested in having a relationship with his daughter. He was involved in some antenatal events and after [X] was born he spent time with her by agreement including some overnight time. I glean that the mother may have taken [X] to see him while he was in prison between 2016.
After the father was released from prison the mother gave [X] to him. He embraced the opportunity to care for her but she remained in his care for only about four or five weeks because the maternal grandmother filed an application seeking an order that [X] live with her and on 5 December 2016 an interim order was made for [X] to live with the maternal grandmother and spend defined time with the father.

The mother’s situation

The mother is 21 and sadly her life has been in a state of chaos for many years. During her adolescence she came into frequent conflict with the maternal grandmother and they had some physical fights. She has convictions for assault, breach of ADVO, malicious damage and holding a prohibited weapon. Most if not all of those convictions arose out of an incident at the maternal grandmother’s home on 7 November 2016 which preceded the mother giving [X] to the father.
There had previously been a fight between the mother and maternal grandmother which resulted in the maternal grandmother being charged with assaulting the mother.
In the reasonably near past, and I am not sure if it is still in force or not, there was an ADVO in place to protect the maternal grandmother from the mother.
The mother has a drug problem of long standing. Insofar as she can be classed as a reliable historian, she commenced using marijuana as a teenager and she has also used ecstasy. She was using ice prior to [X]’s birth and she resumed using it in September 2016.
The mother said that she gave [X] to the father in November 2016 intending him to look after her until she got off drugs. In her affidavit she said she did not know why she did not ask the maternal grandmother to care for [X]. In the witness box she said that it was because she did not think her mother would give her back.
In February 2017 the mother entered in-house rehabilitation at (Rehab Centre) but she left after a month. She re-entered (rehab centre) in May and stayed until September during which time on her evidence she attended Narcotics Anonymous and saw a psychiatrist and stayed off drugs. However upon leaving (rehab centre), she resumed using drugs and engaging in criminal behaviour and she is currently in the MERIT Program.
Pursuant to interim orders made on 17 July 2017, the mother spends five hours with [X] each alternate Sunday supervised by the maternal grandmother. The maternal grandmother said that the mother played with [X] and did things such as watching a movie with her and that [X] became very distressed when the mother had to go.
It is quite possible that this is the case. [X] interacted very well with the mother at the family report interviews; the report writer said as follows:
The child then sat on her mother’s lap while they spoke and reflected each other’s words, and coloured in, and played with stamps. The mother was noted to be very affectionate with the child, which was comfortably received buy the child. The child remained settled and happy for 10 further minutes of interactions, and it was observed that the mother was using the title “Bubba”, yet the child was never heard to refer to the mother by her title (Mum, Mummy) at all. The mother was noted to refer to herself as “Mum” when talking with the child. The child then wanted to play with glue and wanted to put it on her hands, to which the mother gently and appropriately refused. After these 10 minutes or so of time had expired, the child wanted to leave the room and find the others again. The observations with the mother then ceased.[1]
[1] Family Report paragraph 75
The mother said that she hoped to get her life back on track and it was put to the father by the mother’s counsel during the trial that he had got his life on track after an extensive period of criminality and drug use and the mother might do the same. The father agreed that this was so but the mother’s life is not on track at the moment. She revealed little to this Court about her current circumstances including the details of her partner, she has not done the drug tests she was ordered to do and although she attended the first and second day of the trial and gave some brief evidence she failed to turn up on the third day.
In the response the mother filed to the maternal grandmother’s application she sought an order that [X] live with her but that was not her position at trial. She recognised that she was not in a position to assume care of [X] and was not even in a position to have unsupervised time with her. She said that all she wanted was a chance to see her daughter supervised. She did not express a preference for whether [X] lived with the father or the maternal grandmother.
The contenders for primary residence of [X] are the father and the maternal grandmother and they agree that [X] should continue to see her mother and that the time will need to be supervised. If anything else is ever to happen for the mother it will have to be considered after the mother provides evidence of being rehabilitated.
In his response the father proposed that the mother spend professionally supervised time with the child but the only viable supervisor, although it is not ideal, is the maternal grandmother.
I have concerns about the maternal grandmother supervising the time because of the historical physical conflict and violence in the relationship between the mother and the maternal grandmother. However, as the family report writer pointed out during cross-examination, unless an order was made for time to occur in that way the mother may not see the child at all because she is unlikely to engage with a professional supervision service.
It was generally agreed that the child’s relationship with the mother was worth preserving and it seemed to be generally agreed in the end, and I would consider it appropriate even if there was no agreement, that a chance needed to be taken and an order made for the mother to spend time with the child supervised by the maternal grandmother.

The father’s proposal

The issue at trial was whether [X] should remain living with the maternal grandmother or be transitioned into the primary care of the father.
The father sought a transition into his full-time care over a six month period, although I think he wanted the period to be a little shorter because it was his case that the transition had already commenced following the release of the family report. He proposed that at the end of the transition period the child spend alternate weekends with the maternal grandmother. He proposed that there be a restraint on the child being brought into contact with the maternal grandmother’s partner Mr S and he sought an order for sole parental responsibility.
The father’s case was clear and transparent. He made complete admissions about his past history of drug use and criminality and he did not come across as defensive about that or as feeling entitled because he was [X]’s father. He recognised that the Court would be taking a risk placing [X] with him. When he was in the witness box the following exchange occurred:
Her Honour:   Mr Schiak it’s clear to me I think that you love your daughter very much. I mean you wanted to have a relationship with her after she was born. You haven’t had much of a relationship with her mother…
Mr Schiak:No
Her Honour:   But you didn’t walk away and say well this baby has just appeared and I’m not going to have anything to do with her, you wanted to have a relationship with your daughter didn’t you?
Mr Schiak:Yeah, yep.
Her Honour:   And you’re sitting here now because you want to have a relationship with her?
Mr Schiak:Yep
Her Honour:   And you want her to have a life that’s different to yours perhaps, not run off the rails in her mid-teens?
Mr Schiak:That’s right.
Her Honour:   You’re wanting me to take a chance with you and increase your time with [X] with a view to in about 9 months she is primarily living with you.
Mr Schiak:Yep
Her Honour:   If I do that Mr Schiak and the wheels fall off for you again, your daughter is going to be in a dreadful position isn’t she.
Mr Schiak:Yep. A worse position than now.
Her Honour:   So I would have disrupted her life, put her with you and then you let her down. How can I be sure that that isn’t going to happen?
Mr Schiak:You can’t be sure.
Her Honour:   What do you say I should do?
Mr Schiak:I think, I think follow your professional advice about what you should do.
Her Honour:   But you’d like me to take a chance and give chance to show that...
Mr Schiak:That’s what my intentions have been from the start of the case. That’s what my intentions are gonna to be, they’re not going to change.
Her Honour:   Yes
Mr Schiak:Do whatever I need to facilitate the time transitional period, emotional period, everything, I’m invested into the case, that’s what I want, that’s what I’ve intended from the start.
It is clear from this passage that the father is not defensive and does not come across as entitled. He recognises that there are some risks in me transitioning the child into his primary care but it is nevertheless his case that I should trust him and accept that he does not intend not to fall back into his old ways and that he will give her the best life that he can.
The father is strongly supported by the paternal grandfather Mr J and the paternal aunt Ms J.
The paternal grandfather gave evidence and he impressed me as someone who was calm, reliable and realistic. He is a (occupation omitted) and he helped his son get a job at (employer omitted).
The paternal grandfather lives in Town B and at present the father lives with him and he can stay there as long as he likes providing he does not revert to drug use. However the father is seeing someone in another suburb. He wants in due course to set up his own household and perhaps buy a home. Given his age it is almost inevitable that at some point he will move out of his father’s home and set up his own household but nevertheless he has strong support from his father.
Ms J is a (occupation omitted). She does not use drugs. She has no criminal convictions and she has a very good relationship with her brother.
Ms J has had some involvement with [X] since [X] was a baby. Her evidence was, and she was not cross-examined but I have no reason to suppose it was disputed, that even prior to these proceedings commencing, when [X] was living with the mother she would sometimes get Ms J to look after [X] when she wanted to go out.
The orders that I made in December 2016 required Ms J to supervise the father’s time. She has been to the maternal grandmother’s home to collect the child. She is a force for good in the whole situation and she is very supportive of her brother.
It was the father’s case that there were issues with the maternal grandmother’s parenting capacity namely her failure to attend to the needs of her older children [A] and [B] over the years; her tiredness; family violence in her household; and a concern about [A]’s behaviour in her household including his propensity to take all his clothes off. It was the father’s case that living with the maternal grandmother long-term was not a good placement for [X].

The maternal grandmother’s proposal

The maternal grandmother does not accept that there is merit in those criticisms. She lives with [A], 11 and [B], 9 and I am satisfied, although the maternal grandmother seemed at pains to try and obscure it, that she also lives with Mr S who is [A] and [B]’s father.
The maternal grandmother’s case was that [X] was primarily attached to her and was a secure part of the Balke family where she was loved by everyone who lived there. She said she was taking very good care of [X]. She denied that there was any domestic violence perpetrated by her or perpetrated by Mr Balke in the house and she said that there was no risk of the mother perpetrating family violence unless the mother was on drugs. She did not admit that there were serious issues with her care of [A] and [B] and she did not see [A]’s behaviour in her home as an issue.
The maternal grandmother said that she was particularly concerned that the father might relapse into drug use and criminality. She sought an order for sole parental responsibility and an order that [X] live with her and continue spending two overnights each week with the father and that she also spend one week with him during the school holidays. She opposed any restraint on Mr S being part of the situation.
Both the Independent Children’s Lawyer and the family report writer supported the child transitioning to the father’s care but it is an option fraught with potential risks for [X], not the least of which is that if a chance is taken with the father and the wheels fall off [X] might either have to return to the maternal grandmother or face yet another change in her living circumstances. So it is a very difficult case.

The evidence

The evidence was given, and I am leaving the mother to one side at the moment because I am focussing on the issue between the maternal grandmother and the father, by the maternal grandmother and Mr S in the maternal grandmother’s case and by the father, the paternal grandfather and the paternal aunt in the father’s case.
A family report was prepared by Mr A, a Regulation 7 family consultant.
All the witnesses were cross-examined except for Ms J who gave birth on the day the trial commenced. It was agreed that her affidavit would be admitted and given such weight as the Court considered appropriate. I have no reason based on the other evidence to dismiss anything that is in the paternal aunt’s affidavit.

The witnesses

I commented earlier that I found the father a non-defensive and transparent witness. The maternal grandmother however was a poor witness. She was often vague and she tended to obfuscate and prevaricate when asked questions.
For some reason which I find difficult to comprehend, unless it is due to some Centrelink reason, the maternal grandmother was evasive and imprecise about the nature of her relationship with [A] and [B]’s father Mr S.
She said as follows in her affidavit:
[A] and [B]’s father is Mr S We divorced approximately 5 years ago, however, we have a good relationship and he often attends my home to see the children and help out if needed.[2]
[2] Paragraph of the maternal grandmother’s trial affidavit filed on 30 July 2018.

Mr S similarly was not up-front about the situation. He described himself as the maternal grandmother’s ex-husband in his affidavit and said that they remained close friends for the sake of parenting their children. The maternal grandmother and Mr S conveyed a similar impression to the family consultant namely that they were ex-husband and ex-wife, friends who spent a lot of time together because they were parenting their children.
When the maternal grandmother was asked in cross-examination how much time Mr S spent at her house she said it was four or five days a week and sometimes seven days a week. Mr S said that he used his mother’s address as his address but spent the majority of his time living at the maternal grandmother’s house and I seem to recollect that in answer to a question he said that was where he got up in the morning and went to work from. He basically conceded that he was substantially living with the maternal grandmother.
Even absent those concessions in cross-examination, the extent of his involvement in the maternal grandmother’s household is clear from Mr S’s affidavit. He said among other things as follows:
It would have a huge impact on both [X] and the boys, as well as Anne-Marie and myself, if [X] was to be removed from the home…
[X] is a huge Nanny and Poppy’s Girl. She loves playing with me and will demand to be [sic] picked up for cuddles every 5 minutes. I love spending time with her.[3]
[3] Paragraphs 32 and 33 of Mr S’s Affidavit filed on 23 August 2018.
Mr S referred throughout his affidavit to attending crèche events for [X], being involved in changeovers with the father which he does predominantly and observing [X] with her mother when her mother came to the house to spend supervised time with [X].
Mr S minds [A] and [B] on Monday and Tuesday night when the maternal grandmother plays (hobby) and on Wednesdays when she plays (hobby). He, and not the maternal grandmother, liaises with [A] and [B]’s school.
Mr S attended the family report interviews. His interaction with the family members on that day demonstrated his close involvement with the family.
I am not sure why the maternal grandmother and Mr S are maintaining what I consider to be a fiction about their living arrangements, unless it is for Centrelink reasons, because the grandmother is on a disability support pension, but I am satisfied that Mr S is substantially living in that household.
It concerns me that the maternal grandmother and Mr S were not frank about the situation. They tried to sidestep and prevaricate about it and when people do that in relation to one issue, I have to ask myself whether they might be doing it in relation to other issues and why I should believe what they tell me about other issues. It does not mean that I automatically dismiss their evidence but it means I am very cautious and have a very careful look to see whether I should accept it.
There were some other clear examples in the evidence of the maternal grandmother not being straight with people. Annexure D to her affidavit was a letter from the Family Action Centre. Its content could only have come from information provided by the maternal grandmother and it said that the children had not witnessed violence between the maternal grandmother and the mother. That is just not true when you consider the police reports and other evidence in the case.

[X]’s best interests

Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine [X]’s best interests.
There are primary considerations and additional considerations and I am going to start with the additional considerations in s. 60CC (3).
Some are not relevant or helpful and I will tick those off. One is the views of the child because [X] is too young to have a view about parenting arrangements. Another is the child’s maturity, sex and background which does not help me as a separate consideration. Another one is practical difficulty and expense which is not a relevant consideration in this case.
One that is of very marginal relevance is the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child. The father was criticised for not paying child support but it has not been sought and it is very difficult for people to deal with that situation and rush off and offer sums of money. If people want child support then they need to apply for child support.
Another consideration which is not hugely relevant is the extent to which each parent has taken or failed to take the opportunity to spend time with the child, make decisions about the child or communicate with the child. The father has always been interested in his daughter and keen to have a relationship with her and at the moment I am only considering the situation of the father. I am not considering the situation of the mother.
I will then turn to the s. 60CC (3) considerations which loom large in this matter.
One is the nature of the relationship of the child with each of her parents and any other person including a grandparent or other relative of the child.
The maternal grandmother is the child’s primary attachment figure. [X] has lived with her since December 2016 pursuant to a Court order. Prior to that she was involved in the care of [X] on and off while the mother and [X] lived in her house and the family report writer observed a satisfactory relationship between the maternal grandmother and the child.
The father also has a good relationship with [X]. He commenced spending time with her pursuant to Court orders on 5 December 2016 and he has always been reliable about spending time with her. He has built up a very good relationship with [X] – a very good bond. The family report writer who observed the father and child in January 2017 said as follows:
The child was the informed by the report writer that her “Daddy” was here to see her, and the child smiled, and then indicated that she wanted to see him. There was a natural smile on the child’s face.
There was physical attention observed with the two cuddling upon greeting. The child said “Dad” and she smiled and cuddled him. The bulk of the observation between the child and the father was noted to be quieter, with much more ‘one on one’ play possible with the father. The father was observed to be quiet, gentle, and appropriate in his interactions with the child. The father initiated an activity of reading a book, and further gameplay as the observations went on. The father demonstrated an awareness of risk issues, such as the child putting texter lids in her mouth, and he stopped her doing so.
The father was often observed encouraging the child to do things for herself (such as drawing or putting on texter lids) and he also employed a teaching focus when they sat at the table and wrote the words “[X]” and “Dad”. The father then informed the report writer that the child was very sleepy before, when seeing her in waiting area. He attributed this to the use of a bottle from which he observed her drinking.
The child walked away from her father at one point, and went to get a toy that had grabbed her attention earlier. The father interacted with the child, and the toy with enthusiasm. The child continued to show the father things excitedly, and the father responded appropriately. The child found a toy apple and the father employed a teaching focus in regards to his interactions with her, and this included physical play with a ball (catching and throwing the ball) while the father cheered and praised child for doing well.[4]
[4] Paragraphs 76-79 of the Family Report.
That sort of evidence of the family report writer is always important. Family report writers make recommendations and their recommendations may or may not be followed by the Court but the evidence they give about things like their observations of people are usually not challenged, they are reliable and they are very helpful to the Court.
I am satisfied the father has a good bond with [X].
The child also has a good relationship with her paternal grandfather and with Ms J. They have had plenty of interaction with her since the orders were made if not before and the family report writer commented favourably on their interaction with the child.
The child appears to have a reasonable relationship with [A] and [B] insofar as the observation at the family report interviews is concerned although their relationship with [X] was not the focus of the family report interviews, the focus was on her interaction with the adults. However there is nothing to suggest, either from anything the father has said or anything the grandmother has said, that there is a particularly poor relationship between [X] and those children. There was not much opportunity to observe them at the report interviews but there was not a lot adverse in the evidence about those relationships.
The maternal grandmother’s evidence was that [A] in particular doted on [X] and would be devastated if she no longer lived in the home but the maternal grandmother needs to understand that my focus is on what is best for [X] not what is best for either [A] or [B].
From a relationship point of view the child has good relationships with her father, her grandmother and extended family members. There is also nothing to suggest that she has a poor relationship with Mr S.
The next thing I have to consider moving down the list of things I have not ticked off is the likely effect of a change in the child’s circumstances.
A transition to the father’s care would be a significant change in [X]’s circumstances. The father has been consistent throughout the child’s life in wanting to have a relationship with her, he is not likely to lose interest in her and he has strong family support and from those perspectives a change should, if it is gradual and [X] has a good bond with him, be a positive one for [X].
The only difficulty is that the father may relapse into drug use. That can happen. He has certainly not reached a point where I could say that there is a limited risk of that happening.
The father’s life is likely to change in the future. I cannot predict the ways in which it is going to change but the important thing is his strong wish to be part of his daughter’s life, a wish that has always been there and the child’s bond with him.
The family report writer was of the view that a transition to the father’s primary care would be a positive outcome for [X] for a whole lot of reasons but I am not going to go into that now. I am going to make some further findings about the s. 60CC (2) and (3) matters and come back to the likely effect of the change on [X].
I must consider the capacity of each parent and any other person including a grandparent of the child to provide for the needs of the child including her emotional and intellectual needs.
The father is caring appropriately for [X] at the moment in the time that she spends with him. There were no complaint about her not being fed, supervised or properly dressed and looked after. The father has that capacity and he has strong family support behind him to help him with that as well.
However there are other issues in this case which could impact on the father’s parenting capacity and the significant one is his history of drug use and criminality.
The father commenced using cannabis in his teens and he has a substantial criminal record. The family report writer summarised it as follows:
The father confirmed that he has convictions for fraud and fraud, and break and enter (2012), driving unlicensed, and drug possession (2016), which, because of a suspended sentence and an apparent administrative error, meant that he was incarcerated (at Town C Correctional Centre) for 3 months (2017).[5] The father has been under probation and parole since his release.[6]
[5] The reference to 2017 is an error and should be 2016.
[6] Paragraph 43 of the Family Report.
The only thing to say about that is the father’s last offending was in about 2016. He did have to appear before the Court in 2017 but that was for a couple of offences dating back to 2012 so for about two years now the father has managed to not be involved in the criminal justice system.
The father’s offending was concurrent with his drug use and he appears to have turned his life around and ceased using drugs. There is no evidence that he has used ice or any hard drugs since his release from prison in 2016. He tested positive for cannabis in 2017 but said that he had last used cannabis in early 2017 and the test results are consistent with that. The father has done three hair follicle tests since then and he has never tested positive for any illicit drugs. He has a job at (employer omitted) where his father works and he is subject to drug testing there and he has not tested positive for drugs there.
All that is very good but it is early days for the father. He has a nine year history of illicit drug use. His emergence from drug use is fairly recent and it is too early to be absolutely certain that he will never relapse.
One of the fallouts of the father’s history of criminality is that he currently does not have a drivers licence and it is unclear when he will regain it. He intends to attempt to do so sooner rather than later but at the moment he is reliant on others for transport.
The father’s history of drug use is concerning and he is still at a point where you cannot be certain that he will never relapse but he is not using drugs at the moment. He is caring appropriately for [X] when she is with him and those are all positives.
During cross-examination the father was pressed about how he would care for the child given his work commitments. Some of his work at present is on weekends and the paternal grandfather works at the same time as the father so he may not be available to assist with care of [X] during that period. The father is employed full time so if [X] is in his primary care there would be other days when the father was working.
It is very important that the father continue working. He is earning a good salary. It is important for his self-esteem that he continues working. It is probably part of ensuring that he does not relapse into illicit drug use. One would not want to see him not working but the fact that he is working means that there will be issues with [X] being cared for while he is working.
The father said in the witness box that he would continue to take [X] to the same day care centre in Town D that she attends at the moment. He said that he thought it was a very good day care centre and [X] was happy there. That will involve some effort because of the driving licence situation. I certainly hope that he does do that.
He also said he had other people he could call on to assist him with the care of [X] if needed and I accept that he has. His sister lives 40 minutes away at Town E but even so the father has people around him who can assist him with the care of [X].
I do not consider that the fact that the father is working and that care arrangements will have to be made is a disqualifying factor for him being the primary carer of the child and in any event if he continues to work on weekends and I make an order for alternate weekend time with the maternal grandmother, on one weekend in two the child will be with her.
The father was asked about his mental health. There is an entry in the Department of Corrective Services notes about him attempting suicide in 2013. The father did not make too many admissions about that but it was during a period when he was using drugs. There may be some substance in it but it was five years ago and there was no evidence that he currently had any mental health issues. He suffered from ADHD as a child but nobody suggested or brought evidence before me to suggest that this was currently having an impact on his life.
The father is young; he is still only 24. Many things could change for him in terms of relationships and housing but he is doing very well at the moment. He has strong support around him and I am satisfied that he is capable of providing good care for [X].
The father was cross examined about the paternal grandmother and about issues with her but there was nothing to suggest that she posed any risk of harm to the child if the child was living with the father.
Turning to the maternal grandmother, on the positive side [X] presents as well cared for. In one of the notes somewhere – I think it might have been in the FACS material but I am not sure – she is described as beautifully dressed and clean and tidy. She regularly attends day-care which is a positive given her whole situation and whatever else might be said about the maternal grandmother having some difficulty getting up in the morning there was no suggestion that [X] had not been taken to the day-care.
It is also important to have regard to the passage in the family report where the family report writer said as follows:
The willingness of the maternal grandmother to provide alternate care for the child when the parental responsibility was either placed on her by the mother, or as a result of her concern about the child with either parent, is considered to be a welcome and justified intervention in the care of the child. Without this intervention, it is possible the child may have been placed by FACS into alternate care.[7]
[7] See Paragraph 99 of the Family Report.
That needs to be born in mind because in November 2016 the mother was completely out of it. She left the maternal grandmother’s home after smashing some windows and attempting to choke her. She placed the child with the father who had just got out of jail and was a completely unknown quantity. There is merit in the observation by the family report writer that if the maternal grandmother had not taken the child she might have been in foster care. So no matter what the outcome of this case and what criticisms I make of the maternal grandmother, and I am going to have to make some, that positive for [X] needs to be borne very firmly in mind.
One of the concerns raised in the evidence about the maternal grandmother and unfortunately, it has some substance is the general issue of supervision of [X] because [X] is only three years old. There was no suggestion that she was not being taken to crèche but there were many allegations in the case, and they have substance, that there were occasions when the maternal grandmother just did not get up in the morning.
The father reported calling around to the house when the maternal grandmother did not turn up for changeover and seeing [A] and [B] in their school clothes and the maternal grandmother only just having got up. Ms J reported seeing [X] running around the house unattended. A service provider from one of the organisations the mother is linked in with reported going to the house on another occasion and being unable to rouse the maternal grandmother.
The maternal grandmother brushed all this off and did not really offer an explanation for it.
I am satisfied that these incidents have occurred. I do not know why it is happening and the maternal grandmother did not offer any explanation.
The maternal grandmother suffers from Crohn’s Disease. She was diagnosed with it some time ago and she said in her affidavit that there was a period when she was in constant pain and that the illness made her lethargic and she always felt run down. There is note in the subpoena material from 1 March 2017 which refers to the Crohn’s Disease and how it made the grandmother tired and how she was trying to manage the condition herself. It is in a document from the Family Action Centre and it says:
Ms Balke has no regular doctor and self manages her Crohn’s and will ask the doctor at the medical centre for steroids which she will take if she has a flare up. Ms Balke finds it hard to walk down the street and some days will be worse than others….[8]
[8] See Exhibit “G”.

The maternal grandmother had a medical issue last year and had to go to hospital during which time Mr S cared for [X] and the boys.
That condition could be causing some problems for the grandmother. She also has her late nights playing (hobbies) so I do not know where the problem is but I am satisfied that there is a problem with the grandmother sometimes not getting up and there is a problem with [X] sometimes not being supervised.
While everything needs to be kept in proportion the concern about supervision leads into this. [A] and [B] are living in the house with [X] and [A] has significant disabilities. Not only that he has a propensity to take his clothes off and wander around the house naked. There was no significant dispute that this was the case and if there had been there is plenty of evidence to make a finding that it is so. Ms J referred to going to the house and seeing [A] naked. There is also reference in some of the subpoenaed material to that being a problem.
[A] is 11 and he has significant behavioural difficulties. He is aggressive at school. The maternal grandmother and Mr S made some very limited admissions about that and there was a suggestion that he was sometimes oppositional and swore at people at home. It causes me considerable unease that the maternal grandmother may be asleep in bed and [X], [A] and [B] may be wandering around the house unsupervised given that [X] is only three years old.
The family report writer also considered it a concern and said as follows:
So, while perhaps more speculative, the report writer also has some concerns about the fact that the two older boys –
(because apparently occasionally it is also a problem with [B])
… were noted to be often naked around the house and this is not discouraged by the maternal grandmother.
I am concerned about it because of the supervision issue and the family report writer went on to say:
It is additionally of concern that the child, [A], has a diagnosis of ODD and autism – [9]
[9] Paragraph 101 of the Family Report.
Well, it is actually autism now, I think, which did appear to the report writer to be somewhat severe and that is certainly borne out by the notes. It was additionally noted in subpoena evidence that he was likely to interact with other children in a highly inappropriate and aggressive way.
This then leads into another issue namely the maternal grandmother’s parenting of [A] and [B] historically and her management of their issues.
[A] was observed to have significant issues with speech, behaviour and possibly comprehension when he commenced kindergarten and when [B]’s time in kindergarten rolled around he was also observed to have some problems although not of that severity.
The school’s concerns about [A] and [B], as well as police reports about incidents involving the maternal grandmother, Mr S and the mother and a couple of comments [A] and [B] made about the maternal grandmother’s behaviour, led to numerous reports being made to the Department of Family and Community Services about this family over the years.
I will deal separately with the complaints which relate to exposure to family violence and I do not need to deal again with some that relate to the mother’s drug use but many of the complaints to the Department related to alleged neglect of [A] and [B] and ongoing concerns about them.
Scattered through the records there are numerous references to these children not being taken for assessments or being provided with assistance in relation to their issues.
In one note from the school it is alleged that the school had followed up with both parents continuously over a period of four years but the parents responded with reluctance, denial and aggression and did not taken any appropriate action.
There is evidence which supports the accuracy of that summary.
In the material produced by the Department there is a note dated 7 March 2017 which refers to a conversation with Ms S who had been supporting the maternal grandmother. Ms S said that she had arranged for several referrals for the boys for paediatric assessments however the maternal grandmother did not attend on the GP even to collect the referrals.
There is also reference to [A] being suspended from school.
In the family partnership plan notes there is reference to a conversation with the maternal grandmother which records that:
She feels judged by the school and says the last few times she has met with the school she has cried during the meetings as she has felt judged and attacked. She is cranky that the school wants her to get the boys reassessed. She feels the schools are making things bigger than they are.
There is then a suggestion that [B] attend a different school and there is then the comment:
Ms Balke says it’s hard for her to follow up on things due to her health issue and she says she has been told she could apply for NDIS funding but she has tried and got nowhere.
There are numerous reports in the material to these children not receiving the intervention and assessment they needed.
There is a letter in the subpoenaed material from a Dr S from Kaleidoscope. He assessed [A] and said he would benefit from speech and occupational therapy assessments and a psychosocial review. There is another report on 10 October 2013 which indicates [A] would benefit from intensive and ongoing speech therapy but none of that happened and the boys were not reassessed.
It went on and on with the school pressing for some reassessment to occur and some assistance to be sought. There is a reference on 8 December 2016 (three years later) to the school asking that somebody expedite a paediatric assessment of [B] and [A]. There is another letter on 24 January 2017 on this topic.
The children were re-assessed on 31 May 2017. [A] was assessed as having autism spectrum disorder, a mild intellectual disability and Klinefelter syndrome. The importance of [A] having ongoing speech therapy was stressed.
Dr L from Kaleidoscope saw [A] four months later and said in a letter she wrote:
I reviewed [A] today with his father, Mr S. I last saw him three months ago when he attended for reassessment at our service after originally attending in 2013.
[B] was also re-assessed in 2017. It was suggested that he would benefit from a hearing test, a cognitive assessment and speech and occupational therapy.
There has been a significant issue with these children not having their medical needs attended to, not just over a few months but over many years.
The maternal grandmother said in her affidavit that she was currently engaged with the Benevolent Society and the Family Action Centre who were assisting her to work with the children’s school and address issues of concern.
She said that she had been engaged with them for some time but even with their assistance it took a considerable time for appropriate assessments of the children to be carried out. It is clear the maternal grandmother finds it impossible without support to arrange assessments and interventions for the children and even when she has support it takes an extremely long time to get anything done.
[X] does not have the problems [B] and [A] do and it could be argued that the maternal grandmother’s inability to obtain assistance for [A] and [B] and what might be seen as bordering on medical neglect of those children is not centrally relevant to this case. That would be an argument that could be put. [X] does not have those problems so [X] is not likely to be neglected.
However a couple of other issues arise out of the neglect of [A] and [B]. One is that because of the issues with [A] and his behaviour at school and the fact that numerous reports were made to the Department about medical neglect of the children as well as about the mother and about violence in the home, this family has been under investigation by the Department for years.
Complaints have been made by the school and they have had to be investigated. People have gone around and inspected the maternal grandmother’s home. This is intrusive, it is stressful and it has all arisen out of the issues with the neglect of [A] and [B] and the managing of [A] and [B]’s problems. If [X] lives in the home she is part of that stress and part of that involvement by services who are coming around to check up on what is going on.
[A] in particular has some quite severe problems as the family report writer identified. There is constant reference in the notes from the school to him being aggressive at school, not knowing how to get the attention of other children without being aggressive and not being able to be let out into the playground at lunchtime to play because of his behaviour to other children.
There is also a reference to him wiping bodily fluids around at school and Mr S said at a recent assessment of [A] that this was something he did at home. He also uses foul language at home according to Mr S.
Mr S did not admit when he attended for the recent assessment that [A] was aggressive at home but the only people whose word I have for the fact that [A]’s behaviour is not as challenging at home as it is at school is the word of the maternal grandmother and Mr S and I have reason to be concerned about their evidence.
In summary, I have a situation where the medical neglect of [A] and [B] has meant that this family has been under the spotlight from FACS for years. I also have a situation where [A] and [B] have quite severe problems and their behaviour needs to be managed.
It is a big job for the maternal grandmother to have to cope with those children and their behaviour, to ensure that they get the speech therapy and other assistance they need and to deal with the school or get Mr S to deal with the school if she is unable to do so. The situation with [A] and [B] is relevant in this case even if the [X] does not have similar problems.
Mr S takes on a very large parenting role in this household. He looks after the children when the maternal grandmother plays (hobbies). Everyone needs a bit of a break so I am not critical of her for that but he looks after the children then.
It was Mr S who took [A] to his assessment with a paediatrician recently. He liaises with the school because the maternal grandmother finds that too difficult. He looked after all three children when the maternal grandmother had to go to hospital. He attends [X]’s crèche events with the maternal grandmother. He has a very large parenting role in this household, in fact it is difficult to see how the maternal grandmother could manage without him and if he is a problematic part of the household because family violence that raises another concern and that leads into the next relevant matter I have to consider.
There are many allegations of family violence in this matter.
After the proceedings commenced the maternal grandmother applied for an ADVO against the father alleging that she had been harassing him. The application was dismissed and there was no evidence at trial which would lead me to be satisfied that I could make a finding that the father had been violent to the grandmother or to the mother or other females.
Mr S alleged in his affidavit that there had been some incidents of that nature but it was all gossip and hearsay, not something I can place any weight on.
There were a number of allegations about family violence involving the maternal grandmother and people in her home.
The mother has been violent in the maternal grandmother’s household and [A], [B] and [X] have all been exposed to that. On 7 November 2016 the mother, who was holding [X], grabbed the maternal grandmother by the throat and later tried to break the windows of the house with a shovel. Mr S took [X] from the mother. The mother threw a brick through a window. Police were called and the mother was later charged and an ADVO made for the protection of the maternal grandmother.
On an earlier occasion the maternal grandmother and the mother had an extended fight in the home and that is the subject of a lengthy reference in the police notes. The maternal grandmother bit the mother and was charged with assault. [A] and [B] were exposed to that incident.
It is extremely unlikely that those were the only two incidents involving the mother but they were the focus of evidence at the trial.
The maternal grandmother’s case at trial was that it had been two years since the last incident with the mother on 7 November 2016 and I should not be overly concerned that something of that nature might happen again.
I am concerned that it might happen again. The maternal grandmother’s evidence was that these violent incidents occurred when the mother was using drugs and the mother is still using drugs. I do not see how anyone could possibly say that something like this might not happen again. The maternal grandmother said that at this time if she asked the mother to leave because she was not happy with her behaviour, the mother left. However I cannot be comfortably satisfied that there is no risk of the mother behaving violently like this in the future and exposing the children to it.
However the mother is not living in the home at the moment and she only comes around for the five hours of supervised time.
There were allegations that there had been violence between the maternal grandmother and Mr S.
In their affidavits both the maternal grandmother and Mr S downplayed that. They did not admit that there had been physical violence. The maternal grandmother said:
Mr S has been a great support to both Ms Balke and me. We may have fights and arguments but he has stuck by us all through everything.[10]
[10] Paragraph 165 of the maternal grandmother’s affidavit.
Mr S denied that there was violence between him and the maternal grandmother. He said:
I accept that there were some heated fights between Ms Balke and I but there was never any family violence between us and has not been an argument for many years.[11]
[11] Paragraph 7 of Mr S’s affidavit filed on 23 August 2018.
Mr S’s evidence was undermined by his admission during cross-examination that there was an incident in which he had damaged a screen door while trying to leave after a fight with the maternal grandmother. He found the door was locked. He punched the door and damaged it on his way out. He said in cross-examination: “I did break the door”. That is family violence and that undermines what Mr S said in his affidavit.
There is a police report about an incident on 19 April 2014 which I will call the pool cue incident. It was subject of some cross-examination. The maternal grandmother told police that Mr S had physically assaulted her and pushed her over. Mr S told police that the maternal grandmother was the one who had been violent.
The maternal grandmother professed in the witness box to have no recollection of this incident and suggested that the police must have got something wrong. I do not accept that. Something happened which involved physical violence, I just do not know exactly what it was. There are other suggestions in the material which mean that I cannot rule out the possibility that if there was violence it might have been perpetrated by the maternal grandmother rather than Mr S, or by both of them rather than just Mr S.
There is reference in the FACS material to a mandatory reporter informing the Department that [B] had complained about a physical fight between the maternal grandmother and Mr S in which he felt the maternal grandmother was the aggressor and said that he wanted Mr S to protect him. In the 2014 police report Mr S complained that it was the mother who was aggressive and there is other evidence in the material which suggests that [B] has complained about the maternal grandmother being aggressive to him and grabbing him by the throat.
There are just too many red flags. I have all these red flags and denials by the maternal grandmother and Mr S in circumstances where their evidence on other topics was unreliable and did not properly address the issues.
In my view, it is open to me to find that there has been some episodic violence and aggression between the maternal grandmother and Mr S and that it has been frightening and upsetting for the children.
I cannot be sure how frequently it has happened. Sometimes people live calm lives for quite a lengthy period and then there is some eruption and some violence and then it is all calm again. I do not know whether that is the situation here but I am satisfied that some episodes of violence and aggression have occurred.
I cannot be sure if it is because of the maternal grandmother or because of Mr S or because of them both but there have been incidents of violence which have been frightening and upsetting for [B] and [A] and that is concerning because among other things children who witness that behaviour perpetrated by adults can copy it. They can also become anxious. They can become depressed. It can have all sorts of unfortunate outcomes for them.
I want add here, because I am making a lot of criticism of the grandmother, that I fully accept that people are often dealt a very tough hand in life. The maternal grandmother’s own upbringing was difficult. She was subjected to family violence among other things as a child. I am sad for her that she has had to endure that but I also need to make as sure as I can that no further little children are exposed to that if there is a way to avoid it or limit it because being exposed to family violence does have long-term damaging effects on children.
I am concerned about the situation between the maternal grandmother and Mr S. I am not convinced they have been honest with me. I consider some episodic violence and aggression has occurred and that the children have been exposed to it.
There have been family violence orders but going into those will not add anything to the case.
I must consider the attitude to the child and responsibilities of parenthood demonstrated by each of the parents.
The father is the only parent in this current comparison of circumstances and he has a good attitude to the child but that does not greatly help me to determine the matter.
I must consider whether I should make the order least likely to lead to further proceedings.
Any order in this matter could lead to further proceedings so that does not help me either.
I must consider any other relevant matter and there are none.
I then have to return to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with both of her parents.
I cannot achieve that for this child because although she has a relationship with the mother at the moment she will not form a meaningful relationship with her if she only sees her for five hours a fortnight. The mother will be almost like a visiting aunt. She will not be providing care or nurture for the child and no order that I make can change that. Only the mother getting off drugs can change that and I cannot cause that to happen.
The father has a meaningful relationship with the child at the moment but he can continue to have that whether the child lives primarily with him or whether she spends substantial and significant time with him so in some respects the meaningful relationship consideration does not assist me. It would be of benefit for [X] to have a meaningful relationship with both her parents but she is only able to have a meaningful relationship with her father and she does not need to live with him for that to happen. She can have that if she spends substantial and significant time with him.
The other primary consideration though is the need to protect the child from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Unless the father resumes drug use [X] is not at risk of neglect, abuse or family violence in his care.
In terms of the maternal grandmother I cannot have that same confidence.
I do not think [X] is neglected in the maternal grandmother’s care. She is well looked after in a physical sense. The maternal grandmother takes her to day care regularly. There are concerns about [A] and [B] and their behaviour in the home and about the supervision the maternal grandmother is providing but I have discussed them as parenting capacity issues and I do not consider that [X] is exposed to neglect in the maternal grandmother’s home at the moment.

There is a risk of [X] being exposed to family violence in the maternal grandmother’s home. It is very difficult for me to make a finding about how serious that risk is because the maternal grandmother and Mr S were not frank about what had been happening. I cannot make any realistic assessment of how likely it is that the child will be exposed to that kind of thing and how often it is that is likely to occur in the future. However there is a risk of [X] being exposed to family violence either perpetrated by the maternal grandmother or Mr S. There is also a risk of the mother coming around and acting out again.
Comparing circumstances, I have a situation where I cannot rule out that risk of the child being exposed to family violence in the maternal grandmother’s home but I can say at the moment that the risk does not exist in relation to the father. That is an important consideration when I come to making a decision about the matter.
The father sought a restraint and indeed the family report writer recommended a restraint, on Mr S being around the child. Whether that is necessary, desirable or realistic is something I will have to consider in a moment when I come to the end of my conclusion about the matter.

Conclusion

In many cases where there was evidence such as I have before me about the father’s drug use, which ceased relatively recently, about his criminality and about the fact that the child is primarily attached to the maternal grandmother there would be absolutely no doubt that the father’s application for residence of the child would fail.
However in this case the alternative for the child, namely remaining with the maternal grandmother, is problematic and the family report writer recognised that in his report. He said as follows:
However, after interviews and assessment and particularly that assessment of subpoena material, it is evident that some risks revolve around the care of the child as provided by the maternal grandmother.[12]
[12] Paragraph 99 of the Family Report.
He went on to say:
Subpoenaed child protection notes show a concerning and enduring history of concern held by the department about the care provided by the maternal grandmother to her two children – [A], specifically, and also the younger subject child.[13]
[13] Paragraph 100 of the Family Report.
He then said:
Such evidence suggests departmental concern due to an ongoing environment of family violence –
He then mentioned a couple of incidents that are in the material that I have referred to and discussed when considering family violence and said:
… and the maternal grandmother’s lack of care and medical intervention provided and as advised to the child [A].
In the next paragraph the family report writer referred to the issue of the boys being naked around the home and to [A]’s diagnosis which is severe and which leads to him behaving at times in highly inappropriate or aggressive ways. He then said:
While the report writer recognises the timely intervention of the maternal grandmother in protecting the child, the report writer equally highlights to the Court an evaluation that the child faces some degree of risk by remaining in the maternal grandmother’s home.[14]
[14] Paragraph 101 of the Family Report.
There is strong foundation in the evidence before me for those observations.
The maternal grandmother’s counsel submitted that the Court should not be unduly swayed by the issues the family report writer highlighted about the maternal grandmother. She submitted that the Court should have regard to the fact that [X] was doing very well and further submitted that the maternal grandmother should not be penalised because she had the difficult job of trying to care for one child with quite severe disabilities and another child with special needs. She submitted that the Court should have regard to the fact that in the last twelve months the maternal grandmother had ensured that those two children had their assessments and that she was now accepting support from outside agencies and was relating sufficiently well to them.
The maternal grandmother’s counsel submitted that there was a considerable risk that the father might relapse into drug use and criminality and that it would be quite devastating and damaging for [X] if the court shifted her from one household to another and then she had to shift back because there were issues with the father relapsing into drug use.
However, the family report writer was of the view that the preferred outcome was for the child to live with the father. He referred to the father’s drug use history and noted that there remained some risks for the child with the possibility of relapse, but he pointed out that the father had been free of drug use for some time, had maintained full-time employment in a job where he was routinely drug tested and that he lived with his father who was what the family consultant said was a stabilizing and mature figure, free from convictions or any suggestion of substance abuse. He commented that the father appeared to have adhered to Corrective Services direction since his release from a two month custodial sentence and he commented that while the risks of recidivism or using drugs again could not be ignored, the apparent advances of the father encouragingly gave this child some potential avenues for living with a parent.
The fact that one party is a parent and the other is not does not mean that one party’s case is stronger or that there is any preferential treatment given to a parent. Parenthood does not trump non-parenthood but we do live in a society where children are usually brought up by their parents, not their grandparents. This is a case where only one of the child’s parents are currently available to her in any meaningful way and while parenthood does not put the father in a preferred position it is a relevant factor that I have to weigh in with a consideration of all the other s. 60CC (2) and (3) matters. When I went through the s. 60CC (2) and (3) matters I should have mentioned that it was relevant that the father was the child’s parent and the only parent capable of being involved with the child at the moment.
The family consultant weighed all that up and his recommendation was this:
Given the advances of the father and the potential that this suggests for his parenting of the child, the child needs her father to continue in a manner where he is free of drugs. She ultimately will benefit from living with a parent who can give her all of their parenting attention and she will benefit most from this if she can transition steadily and safely into an arrangement that sees her living with her father. Such a transition needs to be mindful of the attachment the child has with her maternal grandmother and she may be able to adapt to significant change without any risk of harm to the child, if done thoughtfully, transitionally and without any conflict.[15]
[15] Paragraph 105 of the Family Report.
He also commented though on the father needing to provide “assurances”:
…and monitoring mechanisms that demonstrate the child is indeed safe with the father and this should include ongoing routine drug screening and a strict adherence to the law.
Ultimately, his recommendation was that the child remain living with the maternal grandmother but spend increasing time with the father so as to facilitate a transition to living with the father and he set out four stages over which he saw that happening.
I am not bound by the recommendations in a family report. I have to make my own decision based on the evidence before me but the family report writer’s recommendations and his discussion about the issues in the case were thorough. His opinions are based on evidence that I consider to be valid, the same evidence that is before me. In those circumstances the opinion of a family report writer about what should happen for a child deserves weight and in my view I should accept the recommendations in the report and make an order that the child transition into the primary care of the father.
It is not an outcome that is without risk. Sometimes decisions I have to make in this court are fairly easy. Sometimes the options are very clear and the advantages to a child of one option over the other are very clear. In this case I have some concerns about the matter.
The father is 24 years old. He used drugs for many years. He behaved for many years in ways that caused him to be charged with criminal offences. He suffered from ADHD when he was a child. He is strongly supported by his father at the moment and I hope that he will remain free of drug use and free of criminality but I cannot say that it is definitely going to happen.
I strongly hope it does for his daughter’s sake but there is a risk, although in my view not an unacceptable one, that the father will not be able to stay on the straight and narrow and will not remain there for [X] as a valuable part of her life.
However given the issues in the maternal grandmother’s home, it is a risk worth taking for [X], because if it works, if the father does not let the child down, then he will be well placed to give her a good life surrounded by the support that he has from his father, his sister and other people in his life.
I am going to accept the recommendations of the family report which the Independent Children's Lawyer urged me to do and I am going to make an order that the child transition to the care of the father.
The family report writer was not strongly of the view that the father should have sole parental responsibility immediately, but that seemed to be due to the fact that when he prepared his report he was a little bit concerned that if the child commenced living full time with the father the father might not properly facilitate the child spending time with the grandmother. That seemed to be the reason why he was concerned about giving the father sole parental responsibility.
I do not consider that is a concern. Somebody needs to have sole parental responsibility for this child. Decisions will need to be made about her such as her attending school and some other decisions. The maternal grandmother and the father do not get on to any great degree. They are not capable of having discussions and reaching an agreement about major long term issues and the family report writer recognised that as well. Also the maternal grandmother does not have a good track record of actually making decisions and carrying through with things.
If I make an order for the child to live with the father then he needs to have sole parental responsibility for her but he also needs to understand what that means. It gives him responsibility for making decisions about major long term issues such as where she goes to school; whether she has grommets put in her ears at some point if she needs them; that sort of thing.
It does not give him the right to say, “I am not going to comply with the orders about the child spending time with the grandmother.” It does not give him the right to move up to Town F and make it impossible for an order that the grandmother spend alternate weekend time with the child to be carried out. An order for sole parental responsibility should not interfere with the child spending time with the maternal grandmother and I am going to make that order.
I am going to make the orders about time in accordance with order 3 of the Independent Children’s Lawyer’s minute. The father’s counsel wanted me to skip step 1 on the basis that the parties had already put that into effect after the report was issued. I am not going to skip step 1 because given the slight risk factor of the father relapsing into drug use, it is better if we take things slowly rather than move them forward too quickly. It will also give the father time to think ahead about how he is going to care of the child if he is working when after three months he gets a longer period of time.
I have to consider the issue of whether I should make a restraint on Mr S being present during the child’s time with the maternal grandmother.
Mr S is effectively living with the maternal grandmother although he has an accommodation address with his mother. I am concerned about the family violence issue but if I am only going to be making an order for time then on the state of the evidence, I do not consider that it is necessary to make an order excluding Mr S from being in the home when the child spends time with the grandmother.
If I had been considering the child continuing to live with the grandmother, it might have been different although it would have then created an almost impossible situation given the extent to which the grandmother is dependent on Mr S but there are unacceptable risks and there are risks that need to be taken or are worth taking.
The risk to the child of Mr S being there when the child is spending time with the maternal grandmother is not unacceptable at the moment. If there are any further incidents; any further police involvement; any further reports to the Department then it might be that this issue will have to be revisited, but we are talking about two overnights a fortnight and we are talking about a situation where the maternal grandmother is heavily dependent on Mr S for support within that home. I do not want to create a situation where I restrain Mr S being present and perhaps create another risk for the child of [A] and [B] not being supervised around her because Mr S is not there.
It is difficult to be sure that I am doing the right thing but I am not going to impose a restraint on Mr S being present during that time with the grandmother.
The father proposed that he continue to do some hair follicle testing until he had done another eight tests. It is a big financial imposition on him but he is earning a very good income and I am going to make that order even though the Independent Children's Lawyer did not propose it.
Part of the reason I am going to make it is that it is evident from the affidavits of the grandmother and Mr S that they rely a lot on interpretations of Facebook postings, gossip and neighbourhood chatter. The fact that the father does these tests will mean they cannot rely on Facebook postings or neighbourhood chatter to spread a rumour that the father is using drugs. I am going to order as the father proposed that he do the hair follicle tests.
The order will also provide some additional protection for [X] because it will give the father – hopefully he doesn’t need it – an added incentive if some temptation comes his way to say, “No, I cannot afford to do this. I am going to be caught.”
I intend to make an order that the maternal grandmother who is basically the representative of the maternal family at the moment can obtain information from the school and attend school events.

I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 6 November 2018

[2018] FCCA 3079

20 September 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Natural Justice

Procedural Fairness